EXHIBIT 1.1
SHARES
AMERICAN TOWER CORPORATION
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
July __, 1998
Credit Suisse First Boston Corporation,
BT Alex. ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇ Brothers Incorporated,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, and
▇▇▇▇▇ ▇▇▇▇▇▇, Inc.,
As Representatives of the Several Underwriters (the "Representatives"),
c/o Credit Suisse First Boston Corporation,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇.
Dear Sirs:
1. Introductory. American Tower Corporation, formerly known as
American Tower Systems Corporation, a Delaware corporation ("Company"), proposes
to issue and sell shares of its Class A Common Stock, par value $.01
per share ("Class A Common Stock" or "Securities"), and the stockholders listed
in Schedule A hereto and the stockholders listed in Schedule B hereto
(collectively, "Selling Stockholders") propose severally to sell an aggregate of
outstanding shares of the Securities (such shares of
Securities being hereinafter referred to as the "Firm Securities"). The Company
also proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than additional shares of its Securities, as set
forth below (such additional shares being hereinafter referred to as
the "Optional Securities"). The Firm Securities and the Optional Securities are
herein collectively called the "Offered Securities". The Company and the
Selling Stockholders hereby agree with the several Underwriters named in
Schedule C hereto ("Underwriters") as hereinafter set forth.
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-52481) relating to the
Offered Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and either (A) has been
declared effective under the Securities Act of 1933 ("Act") and is not
proposed to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (A) an
additional registration statement (the "additional registration statement")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement means (A) if the
Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with respect
to such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective pursuant
to Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part of the
initial registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement".
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The Initial Registration Statement and the Additional Registration
Statement are hereinafter referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". The form of
prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission ("Rules and Regulations")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the requirements of
the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement of
a material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
(in light of the circumstances under which it was made, in the case of the
Prospectus), and no Additional Registration Statement has been or will be
filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(iv) Each subsidiary of the Company has been duly incorporated (or
formed, as the case may be) and is an existing corporation (or limited
partnership or limited liability company, as the case may be) in good
standing under the laws of the jurisdiction of its incorporation or
formation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease
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of property or the conduct of its business requires such qualification
except where failure to so qualify would not, individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; all of the issued and outstanding capital
stock (or partnership or other equity interests) of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
(except for any general partnership interest) nonassessable; and, except
for the pledge pursuant to the Credit Agreements (as defined herein) as
disclosed in the Prospectus, the capital stock (and partnership and other
equity interests) of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
are fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; the merger (the "ATC Merger") of American
Tower Corporation, a Delaware corporation ("ATC") into the Company as
described in the Prospectus has been consummated. The Offered Securities
and all other outstanding shares of capital stock of the Company have been
duly authorized; all outstanding shares of capital stock of the Company
(including the Offered Securities being sold by the Selling Stockholders)
are, and, when the Offered Securities being sold by the Company have been
delivered and paid for in accordance with this Agreement on each Closing
Date (as defined below), such Offered Securities will have been, validly
issued, fully paid and nonassessable, and conform or will conform to the
descriptions thereof contained in the Prospectus; and the stockholders of
the Company do not and will not have any preemptive rights with respect to
any of such securities.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
the offering of the Offered Securities.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or under standings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any outstanding securities of the
Company (that will remain outstanding after the Closing Date) owned or to
be owned by such person or to require the Company to include such
securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(viii) The Securities, including the Offered Securities, have been
approved for listing, subject in the case of the Offered Securities being
sold by the Company, to notice of issuance, on the New York Stock Exchange
("NYSE").
(ix) No consent, approval, authorization, order or waiver of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by the Company or any subsidiary of the Company for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except (i) such as have
been obtained and made under the Act and (ii) such as may be required under
state securities laws.
(x) The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated will not, result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation, order or
policy of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, the Credit Agreements (as defined
herein) or any other agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such subsidiary
is bound, or to which any of the
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properties of the Company or any such subsidiary is subject, or the charter
or by-laws (or other constituent document) of the Company or any such
subsidiary.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) Except as disclosed in the Prospectus or as would not,
individually or in the aggregate have a material adverse effect on the
Company or its subsidiaries taken as a whole, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
(xiii) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(xiv) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(xv) Neither the Company nor any of its subsidiaries is in violation
of any statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole; and the Company is not
aware of any pending investigation which might lead to such a claim.
(xvi) There are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business, prospects
or results of operations of the Company and its subsidiaries taken as a
whole, or would materially and adversely affect the ability of the Company
to perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and, except
as disclosed in the Prospectus, no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
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(xvii) The financial statements included in the Registration
Statements and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries and the other entities named
therein as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis; and the schedules included
in the Registration Statements present fairly the information required to
be stated therein.
(xviii) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(xix) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on the First Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such Closing Date
and full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Offered Securities to be delivered
by such Selling Stock holder on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on such Closing Date
hereunder the several Underwriters will acquire valid and unencumbered
title to the Offered Securities to be delivered by such Selling Stockholder
on such Closing Date.
(ii) All information furnished, or to be furnished, in writing to
the Company by the Selling Stockholder regarding the Selling Stockholder
specifically for use in the Registration Statement is on the date of this
Agreement, and will be on the Closing Date, true and correct in all
material respects and does not on the date of this Agreement, and will not
on the Closing Date, contain any untrue statement of a material fact or
omit any material fact required to be stated therein or necessary to make
the statements therein not misleading.
(iii) The execution, delivery and performance of this Agreement by
such Selling Stockholder, the sale by such Selling Stockholder of the
Offered Securities to be sold by such Selling Stockholder and the
consummation by such Selling Stockholder of the transactions contemplated
by this Agreement will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over such Selling Stockholder or any of its properties, or any
agreement or instrument to which such Selling Stockholder is a party or by
which it is bound or to which any of its properties is subject, or the
constituent documents, if any, of such Selling Stockholder.
(iv) No consent, approval, authorization, order or waiver of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by such Selling Stockholder for the sale of the Offered
Securities to be sold by such Selling Stockholder or the
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consummation of the transactions contemplated by the power of attorneys or
related Custody Agreements or this Agreement, except such as have been
obtained and made under the Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $________ per share, that
number of Firm Securities (rounded up or down, as determined by Credit Suisse
First Boston Corporation ("CSFBC") in its discretion, in order to avoid
fractions) obtained by multiplying 20,000,000 Firm Securities in the case of the
Company and the number of Firm Securities set forth opposite the name of such
Selling Stockholder in Schedule A hereto, in the case of a Selling Stockholder,
in each case by a fraction the numerator of which is the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule B hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for any Common Stock of the Company to
be sold by Selling Stockholders hereunder have been placed in custody, for
delivery under this Agreement, under custody agreements (the "Custody
Agreements") made with ▇▇▇▇▇▇ Trust and Savings Bank, as custodian (the
"Custodian"). Each Selling Stockholder agrees that the shares represented by
the certificates held in custody for the Selling Stockholders under the Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust, or in the case of a corporation or partnership, by the
dissolution or liquidation of such corporation or partnership, or the occurrence
of any other event. If any individual Selling Stockholder or any such trustee
or trustees should die, or if any such corporation or partnership should be
dissolved or liquidated or if any other such event should occur, or if any of
such trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement and the
Custody Agreements as if such death, dissolution, liquidation or other event or
termination had not occurred, regardless of whether or not the Custodian shall
have received notice of such death, dissolution, liquidation or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) Funds by wire transfer in U.S. Dollars to
an account at a bank acceptable to CSFBC drawn to the order of the Company in
the case of shares of Firm Securities and to the order of the
Custodian in the case of shares of Firm Securities, at the office of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 9:30 A.M., New York
time, July__, 1998 or at such other date and time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "First Closing Date." The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the New York office of ▇▇▇▇▇▇ Trust and Savings Bank
at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than thirty days subsequent to the date of the Prospectus,
the Underwriters may purchase all or less than all of the Optional Securities at
the purchase price per share to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of Optional Securities specified
in such notice and
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the Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFBC to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall not be later than seven full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) Funds by wire transfer to an
account at a bank acceptable to CSFBC drawn to the order of the Company, at the
above office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the New York office of ▇▇▇▇▇▇ Trust and Savings
Bank at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders.
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBC, subpara graph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of Registration Statement No. 333-52481.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b).
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as filed
or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of any amendment or supplementation
of a Registration Statement or of the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Act, the Company will promptly notify CSFBC of such event
and will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement that will correct such statement or omission or
an amendment that will effect such compliance. Neither CSFBC's consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) [reserved]
(e) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of Registration Statement
No. 333-52481 which will satisfy the provisions of Section 11(a) of the
Act. For the purpose of the preceding sentence, "Availability Date" means
the 45th day after the end of the fourth fiscal quarter following the
fiscal quarter that includes the Effective Date, except that, if such
fourth fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(f) The Company will furnish to the Representatives copies of each
Registration Statement (seven of which will be signed, or will be
photocopies of signed ones in the case of Registration Statement No. 333-
52481, and will include all exhibits), each related preliminary prospectus
and, so long as delivery of a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC requests. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(g) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution; provided, that the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process or to subject itself to taxation generally in any
jurisdiction.
(h) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as CSFBC may reasonably request.
(i) For a period of 120 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its Securities, or securities convertible into
or exchangeable or exercisable for any Securities, or disclose the
intention to make any such offer, sale, pledge, disposal or filing, without
the prior written consent of CSFBC, except with respect to private
issuances of Securities (or securities convertible into or exchangeable for
Securities) or in connection with acquisitions, if the holders thereof
agree to be bound by the foregoing 120-day restriction to the same extent
as the Company, grants of employee stock options pursuant to the terms of a
plan in effect on the date
9
hereof, issuances of Securities pursuant to the exercise of stock options
outstanding on the date hereof or granted pursuant to the terms of a plan
in effect on the date hereof, issuances of Securities pursuant to any
dividend reinvestment plan of the Company or issuances of Securities upon
conversion of Class B Common Stock or Class C Common Stock.
(j) The Company will apply the proceeds to it from the sale of the
Offered Securities as described in the Prospectus.
The Company and each Selling Stockholder agree with the several
Underwriters that the Company will pay all expenses incident to the performance
of the obligations of the Company and the Selling Stockholders under this
Agreement, and will reimburse the Underwriters (if and to the extent incurred by
them) for any filing fees and other expenses (including fees and disbursements
of counsel) incurred by them in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC designates and
the printing of memoranda relating thereto, for the filing fee of the National
Association of Securities Dealers, Inc. relating to the Offered Securities, for
any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, for any transfer taxes on the
sale by the Selling Stockholders of the Offered Securities to the Underwriters
(the Selling Stockholders being responsible for the payment of any of such
transfer taxes) and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group, on or prior to the First Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
Each Selling Stockholder agrees, for a period of 120 days after the date of
the initial public offering of the Offered Securities, not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
additional shares of Securities (or securities convertible into or exchangeable
or exercisable for any securities), or disclose the intention to make any such
offer, sale, pledge or disposal, without the prior written consent of CSFBC,
[except as otherwise contemplated under that certain "lock-up" letter dated June
__, 1998 delivered by such Selling Stockholder to the Company and the
Representatives].
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be purchased
on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders of their obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which shall be on or prior to the date of this
Agreement), of Deloitte & Touche LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regula-
tions;
10
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim consolidated
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the selected combined financial data included in the
Prospectus for each of the three years ended December 31, 1997 do
not agree with, or were not properly derived from, the amounts
set forth in each of the constituent companies' selected
financial data included in the Prospectus for those same periods;
(B) the selected financial data included in the Prospectus
for each of the three years ended December 31, 1997 do not agree
with, or were not properly derived from, the amounts set forth in
the audited financial statements of the Company for those same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included in the Prospectus;
(C) the unaudited financial statements included in the
Registration Statements do not comply in form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(D) the unaudited consolidated financial statements for the
three month periods ended March 31, 1998 and March 31, 1997
included in the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for those same
periods or were not determined on a basis substantially
consistent with that of the audited consolidated financial
statements; at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five days prior to the date of this Agreement, there
was any change in the capital stock or any increase in short-term
debt or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus;
(E) for the period from the closing date of the latest
statement of operations included in the Prospectus to the closing
date of the latest available statement of operations read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest Consolidated
Statement of Operations included in the Prospectus, in
consolidated net revenues, operating income (defined as net
revenues less operating expenses, excluding depreciation,
amortization and corporate expenses) or in other income and
expense, net, or in the total or per share amounts of
consolidated net income; or
11
(F) the pro forma financial data set forth in the
Prospectus does not comply in form in all material respects to
the applicable accounting requirements of the Act and the related
Rules and Regulations or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
that data;
except in all cases set forth in clauses (D) and (E) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained or incorporated by reference in the Registration
Statements (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company, its subsidiaries and other
entities whose financial statements are included in the Prospectus
subject to the internal controls of the Company's or such entities'
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(b) The Representatives shall have received letters, dated the date
of delivery thereof (which shall be on or prior to the date of this
Agreement), of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, KPMG
Peat Marwick LLP and Ernst & Young LLP, in each case confirming that they
are independent public accountants within the meaning of the Act and the
applicable Rules and Regulations thereunder, and stating in effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations; and
(ii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
entity whose financial statements they have audited subject to the
internal controls of such entity's accounting system or are derived
directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to be
in agreement with such results, except as otherwise specified in such
letter.
(c) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of either Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of any Selling Stockholder, the Company or the Representatives,
shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the
12
condition (financial or other), business, properties or results of
operations of the Company or any of its subsidiaries which, in the judgment
of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Under writers including
the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇▇▇ & Worcester LLP counsel for the Company, to the
effect that:
(i) Each of the Company and the subsidiaries listed on Annex I
hereto has been duly incorporated (or formed, as the case may be) and
each of the Company and its subsidiaries is an existing corporation
(or limited partnership or limited liability company, as the case may
be) in good standing under the laws of the jurisdiction of its
incorporation or formation, with corporate, partnership or limited
liability company power and authority to own its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation (or other entity) in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(ii) Each of the ATC Merger, and the merger of a wholly-owned
subsidiary of CBS Corporation with and into American Radio Systems
Corporation has previously become effective;
(iii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of all classes of the capital stock of
the Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus under the caption "Description of Capital
Stock"; and the stockholders of the Company have no preemptive rights
with respect to the Offered Securities;
(iv) Except as described in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the
13
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Act;
(v) Each of the Credit Agreements, each dated as of June 16,
1998, among the Company, American Tower Systems (Delaware), Inc. and
American Tower Systems L.P., respectively, Toronto Dominion (Texas)
Inc., as Administrative Agent, and the other lenders under each such
agreement, (collectively, the "Credit Agreements") has been duly
authorized, executed and delivered by the Company and its subsidiaries
party thereto and, constitutes a valid and legally binding obligation
of the Company and its subsidiaries party thereto, as the case may be,
enforceable in accordance with its terms against the Company and its
subsidiaries thereto, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(vi) No consent, approval, authorization, order or waiver of,
or filing with, any governmental agency or body or any court is
required to be obtained or made by the Company for the consummation of
the transactions contemplated by this Agreement in connection with the
sale of the Offered Securities, except such as have been obtained or
made under the Act or under state securities laws or such as may be
required under the Communications Act of 1934, as amended (the
"Communications Act") (as to which such counsel need express no
opinion);
(vii) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein or therein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or body or
any court having jurisdiction over the Company, or any subsidiary of
the Company or any of their properties, or, to such counsel's
knowledge, any agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any
subsidiary of the Company is bound including, but not limited to, the
Credit Agreements, and the Registration Rights Agreement, dated as of
January 22, 1998, among the Company and the stockholders named
therein, or to which any of the properties of the Company or any
subsidiary of the Company is subject, or the charter or by-laws or
other constituent document of the Company or any subsidiary of the
Company, except that such counsel need not express any opinion with
respect to the Communications Act or the rules, regulations and orders
of the Federal Communications Commission (the "FCC") promulgated
thereunder;
(viii) Registration Statement No. 333-52481 was declared
effective under the Act as of the date and time specified in such
opinion, Registration Statement No. 333-52481 , satisfying the
requirements of Rule 462(b), was filed and became effective under the
Act as of the date and (if determinable) time specified in such
opinion, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein or was included in the Initial Registration
Statement or the Additional Registration Statement (as the case may
be), and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the requirements of
the Act
14
and the Rules and Regulations; such counsel have no reason to believe
that any part of a Registration Statement or any amendment thereto, as
of its effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; the descriptions in each Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material respects
and fairly present the information required to be shown; and such
counsel do not know of any legal or governmental proceedings required
to be described in either Registration Statement or the Prospectus
which are not described as required or of any contracts or documents
of a character required to be described in either Registration
Statement or the Prospectus or to be filed as exhibits to either
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements and schedules or other financial data
contained in either Registration Statement or the Prospectus, except
that such counsel need not express any opinion with respect to the
Communications Act or the rules, regulations and orders of the FCC
promulgated thereunder; and
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, FCC counsel to the Company, to
the effect that:
(i) No consent, approval, authorization, order or waiver of,
or filing with, the FCC is required under the Communications Act and
the published policies, rules and regulations of the FCC to be
obtained or made by the Company or any subsidiary of the Company for
the consummation of the transactions described in the Prospectus as
necessary to effectuate the issuance of the Offered Securities to be
sold by the Company, the sale of the Offered Securities by the Company
and the Selling Stockholders, the public offering thereof by the
Underwriters and the execution, delivery and performance of the
Underwriting Agreement (provided that such counsel shall not be
required to undertake any examination of, or to opine with respect to,
the qualifications or ownership interests of the stockholders of the
Company or of any parties that may purchase securities in connection
with such transaction);
(ii) The execution, delivery and performance of this Agreement,
the issuance of the Offered Securities to be sold by the Company, the sale
of the Offered Securities by the Company and the Selling Stockholders and
the public offering thereof by the Underwriters, do not and will not
violate any of the terms or provisions of, or constitute a default under
(i) the Communications Act or any FCC regulation, rule policy or order,
(ii) the FCC licenses held by the Company or any subsidiary of the Company
(provided that such counsel shall not be required to undertake any
examination of, or to opine with respect to, the qualifications or
ownership interests of the stockholders of the Company or of any parties
that may purchase securities in connection with such transaction);
15
(iii) To the knowledge of such counsel, (A) there are no
administrative or judicial proceedings pending before, or threatened by,
the FCC with respect to the Company or any subsidiary of the Company, or
any towers owned or operated by the Company or any subsidiary of the
Company which, if determined adversely, individually or in the aggregate,
could reasonably be expected to have a material adverse effect upon the
Company and its subsidiaries taken on a whole, and (B) the registration
with the FCC of such towers is in full force and effect in that such
registration is held by a subsidiary of the Company, is currently effective
and is not subject to any special conditions (other than those conditions
of a type customarily imposed under the general rules, regulations and
policies of the FCC) that would materially and adversely affect the
operation of such towers, taken as a whole, as currently operated.
(g) The Representatives shall have received an opinion, of counsel
each of the Selling Stockholders as contemplated by and dated the date of
the Power of Attorney and the opinion of such counsel substantially to the
effect that each Selling Stockholder had valid and unencumbered title to
the Offered Securities delivered by such Selling Stockholder on such
Closing Date and had full right, power and authority to sell, assign,
transfer and deliver the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date hereunder; and the several Underwriters
have acquired valid and unencumbered title to the Offered Securities
purchased by them from the Selling Stockholders hereunder.
(h) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorpora tion of the Company, the validity of
the Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Representatives
may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(i) The Representatives shall have received a certificate, dated such
Closing Date, of the Chief Executive Officer of the Company and the Chief
Financial Officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date, that no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission, that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described in
such certificate, and that any additional Registration Statement was filed
pursuant to Rule 462(b) under the Act, including payment of the applicable
filing fee in accordance with Rule 111(a); such registration statement
satisfied the requirements of subparagraphs (1) and (3) of Rule 462(b);
such registration statement was filed prior to the time the Prospectus was
printed and distributed; and no document has been prepared or distributed
in reliance on Rule 434 under the Act.
(j) The Representatives shall have received letters, dated such
Closing Date, of Deloitte & Touche LLP, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇▇▇▇,
▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, KPMG Peat Marwick LLP and Ernst & Young LLP which meets
the requirements of subsections (a) and (b),
16
respectively, of this Section, except that the specified date referred to
in such subsections will be a date not more than five days prior to such
Closing Date for the purposes of this subsection.
(k) The Securities to be delivered on such Closing Date shall have
been approved for listing on NYSE, subject, in the case of Offered
Securities being sold by the Company, only to official notice of issuance.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein. The foregoing indemnity agreement
with respect to any untrue statement or omission in the Preliminary Prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Offered Securities
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
the Prospectus (as amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein; provided, further, that (i) a
Selling Stockholder shall only be subject to such liability to the extent that
the untrue statement or alleged untrue
17
statement or omission or alleged omission in reliance upon and in conformity
with written information furnished to the Company by such Selling Stockholder
specifically for use therein. The foregoing indemnity agreement with respect to
any untrue statement or omission in the Preliminary Prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of the Offered Securities to such person, and the
Prospectus (as amended or supplemented) would have cured the defect giving rise
to such losses, claims, damages or liabilities. In no event, however, shall the
liability of any Selling Stockholder for indemnification under this Section 7(b)
exceed the lesser of (i) the proceeds received by such Selling Stockholder from
the Underwriters in the Offering and (ii) that portion of the total losses,
claims, damages and liabilities for which the Underwriters and any controlling
persons may be subject to indemnification hereunder equal to the ratio of the
total number of Offered Securities sold hereunder by such Selling Stockholder as
compared to the total Offered Securities sold hereunder by all Selling
Stockholders.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and each Selling Stockholder against any losses,
claims, damages or liabilities to which the Company or such Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under this Section
or Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above or Section 9, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a), (b) or (c) above or
Section 9. In case any such action is brought against any indemnified party and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying 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 under this
Section or Section 9, as the case may be, for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
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(e) If the indemnification provided for in this Section or Section 9
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above or Section 9, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection
(a), (b) or (c) above or Section 9 (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholders
and the Underwriters from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, the
Selling Stockholders and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company, the Selling Stockholders and the Underwriters shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and no Selling Stockholder shall be require to contribute
any amount in excess of the amount of the proceeds received by such Selling
Stockholder from the Underwriters in the Offering. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' and the Selling Stockholders'
obligations in this subsection (e) to contribute are several in proportion to
their respective obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section or Section 9 shall be in addition to any liability which the
Company and the Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter or the QIU (as hereinafter defined) within the meaning of the Act;
and the obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-
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defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the aggregate
number of shares of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total number of shares of the Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC, the Company and the Selling Stockholders
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Selling
Stockholders, except as provided in Section 10 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Qualified Independent Underwriter. The Company hereby confirms
that at its request Bear, ▇▇▇▇▇▇▇ & Co. Inc. has without compensation acted as
"qualified independent underwriter" (in such capacity, the "QIU") within the
meaning of Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. in connection with the offering of the Offered
Securities. The Company will indemnify and hold harmless the QIU against any
losses, claims, damages or liabilities, joint or several, to which the QIU may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon the QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder and the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 the respective obligations of the Company, the Selling Stockholders,
and the Underwriters pursuant to Section 7 and the obligations of the Company
and the Selling Stockholders pursuant to Section 9 shall remain in effect, and
if any Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 6(d), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group; if sent to the Company, will be mailed,
20
delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or, if sent to the Selling Stockholders or
any of them, will be mailed, delivered or telegraphed and confirmed c/o with
respect to Selling Stockholders listed on Schedule A, ▇▇▇▇▇▇ ▇▇▇▇▇, with respect
to Selling Stockholders listed on Schedule B, ▇▇▇▇ ▇▇▇▇▇▇, in each case at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
13. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇
as attorneys-in-fact, will act for the Selling Stockholders listed on Schedule A
and ▇▇▇▇ ▇▇▇▇▇▇ or ____________ as attorneys-in-fact, will act for the Selling
Stockholders listed on Schedule B, in each case, in connection with such
transactions, and any action under or in respect of this Agreement taken by any
of them will be binding upon all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to us three of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Stockholders and the several Underwriters in accordance
with its terms.
Very truly yours,
American Tower Corporation
By: ____________________________________
Name:
Title:
Each of The Selling Stockholders Listed on Schedule A Hereto
By:_____________________________________
Attorney-in-fact
Each of The Selling Stockholders Listed on Schedule B Hereto
By:_____________________________________
Attorney-in-fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse First Boston Corporation,
BT Alex. ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇ Brothers Incorporated,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and
▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By Credit Suisse First Boston Corporation
By:__________________________________
Name:
Title:
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