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REGISTRATION RIGHTS AGREEMENT
Dated as of February 15, 2000
Among
AMERICAN TOWER CORPORATION
as Issuer
and
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
FIRST UNION SECURITIES, INC.
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
as Initial Purchasers
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TABLE OF CONTENTS
Page
1. Definitions.....................................................................................1
2. Shelf Registration..............................................................................5
3. Additional Interest.............................................................................7
4. Registration Procedures........................................................................10
5. Registration Expenses..........................................................................20
6. Indemnification................................................................................22
7. Rules 144 and 144A.............................................................................26
8. Underwritten Registrations.....................................................................27
9. Representations and Warranties.................................................................27
10. Miscellaneous..................................................................................29
(a) No Inconsistent Agreements............................................................29
(b) Adjustments Affecting Registrable
Securities............................................................................29
(c) Amendments and Waivers................................................................30
(d) Notices...............................................................................30
(e) Successors and Assigns................................................................32
(f) Counterparts..........................................................................32
(g) Headings..............................................................................32
(h) Governing Law.........................................................................32
(i) Severability..........................................................................33
(j) Securities Held by the Company
or Its Affiliates.....................................................................33
(k) Third Party Beneficiaries.............................................................33
(l) Entire Agreement......................................................................33
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
February 15, 2000, among American Tower Corporation, a Delaware corporation (the
"Company"), and Credit Suisse First Boston Corporation, Deutsche Bank Securities
Inc., ▇▇▇▇▇▇ Brothers Inc., Banc of America Securities LLC, Bear, ▇▇▇▇▇▇▇ & Co.
Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., First Union Securities, Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates,
Inc. (individually, an "Initial Purchaser"; together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated February 9, 2000, between the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the issuance and sale
by the Company to the Initial Purchasers of the Company's 5.0% Convertible Notes
Due 2010 (the "Convertible Notes"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and their direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Convertible Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 3(a) hereof.
Advice: See Section 4 hereof.
Agreement: See the first introductory paragraph hereto.
Amount of Registrable Securities: (a) With respect to Convertible Notes
constituting Registrable Securities, their aggregate principal amount, (b) with
respect to Underlying Shares constituting Registrable Securities, the aggregate
number of such Underlying Shares multiplied by the Conversion Price (as defined
in the Indenture relating to the Convertible Notes upon the conversion of which
such Underlying Shares were issued) in effect at the time of computing the
Amount of Registrable Securities or, if no such Convertible Notes are then
outstanding, the last Conversion Price that was in effect under such Indenture
when any such Convertible Notes were last outstanding, and (c) with respect to
combinations thereof, the sum of (a)and (b) for the relevant Registrable
Securities.
Certificate Shares: See Section 9 hereof.
Closing Date: A Closing Date as defined in the Purchase Agreement.
Company: See the first introductory paragraph hereto.
Convertible Notes: See the second introductory paragraph hereto.
Damages Payment Date: See Section 3(c) hereof.
Depositary: The Depository Trust Company until a successor is appointed
by the Company.
Effectiveness Date: The 150th day after the Issue Date.
Effectiveness Period: See Section 2 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promul gated thereunder.
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Filing Date: The 90th day after the Issue Date.
Global Certificate: See Section 9 hereof.
Holder: Any holder of Registrable Securities.
Indemnified Person: See Section 6(c) hereof.
Indemnifying Person: See Section 6(c) hereof.
Indenture: The Indenture, dated as of February 15, 2000, between the
Company and The Bank of New York, as Trustee, pursuant to which the Convertible
Notes are issued, as amended or supplemented from time to time.
Initial Purchaser: See the first introductory paragraph hereto.
Initial Purchasers: See the first introductory paragraph hereto.
Initial Shelf Registration: See Section 2(a) hereof.
Inspectors: See Section 4(n) hereof.
Issue Date: The latest Closing Date on which the Convertible Notes were
issued and sold to the Initial Purchasers pursuant to the Purchase Agreement.
NASD: See Section 4(q) hereof.
Participant: See Section 6(a) hereof.
Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
Prospectus: The prospectus included in any Registra tion Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a
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prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 4(n) hereof.
Registrable Securities: All Convertible Notes and all Underlying Shares
upon original issuance thereof and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement covering such Convertible
Notes and Underlying Shares has been declared effective by the SEC and such
Convertible Notes and Underlying Shares have been disposed of in accordance with
such effective Registration Statement, (ii) such Convertible Notes and
Underlying Shares are sold in compliance with Rule 144 or could (except with
respect to affiliates of the Company within the meaning of the Securities Act)
be sold in compliance with paragraph (k) of such Rule 144, or (iii) such
Convertible Notes and any Underlying Shares cease to be outstanding.
Registration Default: See Section 3(a) hereof.
Registration Statement: Any registration statement of the Company filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post- effective amendments, all exhibits and all material incorpo rated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers
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and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Registration: See Section 2(b) hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Trustee: The Trustee under the Indenture.
Underlying Shares: The shares of the Company's Class A Common Stock,
par value $.01 per share, issuable upon conversion of the Convertible Notes.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
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2. Shelf Registration
(a) Shelf Registration. The Company shall as
promptly as reasonably practicable file with
the SEC a Registration Statement for an
offering to be made on a continuous basis
pursuant to Rule 415 covering all of the
Registrable Securities (the "Initial Shelf
Registration"). The Company shall use its
reasonable best efforts to file with the SEC
the Initial Shelf Registration on or prior
to the Filing Date. The Initial Shelf
Registration shall be on Form S-3 or another
appropriate form permitting registration of
such Registrable Securities for resale by
Holders in the manner or manners designated
by them (including, without limitation, one
or more underwritten offerings). The Company
shall not permit any securities other than
the Registrable Securities to be included in
the Initial Shelf Registration or any
Subsequent Shelf Registration (as defined
below). By its execution hereof on behalf of
itself and the other Initial Purchasers,
Credit Suisse First Boston Corporation also
hereby waives on its own behalf its right
under the Registration Rights Agreement,
dated February 4, 1999, between the Company
and it, to include any securities in a
Registration Statement filed pursuant to
this Agreement.
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The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on or prior
to the Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is 24 months
from the Issue Date (as it may be shortened pursuant to clause (i) or clause
(ii) immediately following, the "Effectiveness Period"), or such shorter period
ending when (A) all the shares of Registrable Securities covered by the Initial
Shelf Registration have been sold in the manner set forth and as contemplated in
the Initial Shelf Registration, (B) the date on which all the Registrable
Securities (x) held by persons who are not affiliates of the Company may be
resold pursuant to Rule 144(k) under the Securities Act or (y) cease to be
outstanding, or (C) a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the
Initial Shelf Registration or any Subsequent
Shelf Registration ceases to be effective
for any reason at any time during the
Effectiveness Period (other than because of
the sale of all of the securities registered
thereunder), the Company shall use its
reasonable best efforts to obtain the prompt
withdrawal of any order suspending the
effectiveness thereof, and in any event
shall within 45 days of such cessation of
effectiveness amend the Initial Shelf
Registration in a manner to obtain the
withdrawal of the order suspending the
effectiveness thereof, or file an additional
"shelf" Registration Statement pursuant to
Rule 415 covering all of the Registrable
Securities (a
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"Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the
Company shall use its reasonable best
efforts to cause the Subsequent Shelf
Registration to be declared effective under
the Securities Act as soon as practicable
after such filing and to keep such
Registration Statement continuously
effective for the remainder of the
Effectiveness Period. As used herein the
term "Shelf Registration" means the Initial
Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Company
shall promptly supplement and amend the
Shelf Registration if required by the rules,
regulations or instructions applicable to
the registration form used for such Shelf
Registration, if required by the Securities
Act, or if reasonably requested by the
Holders of a majority of the Amount of
Registrable Securities covered by such
Registration Statement or by any underwriter
of such Registrable Securities.
3. Additional Interest
(a) The Company and the Initial Purchasers agree
that the Holders of Convertible Notes will
suffer damages if the Company fails to
fulfill its obligations under Section 2
hereof and that it would not be feasible to
ascertain the extent of such damages with
precision. Accordingly, the
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Company agrees to pay, as liquidated
damages, additional interest on the
Registrable Securities ("Additional
Interest") as follows if any of the
following events occur (each such event in
clauses (i) through (iii) below, a
"Registration Default"):
(i) If on or prior to the Filing Date, the Initial Shelf
Registration has not been filed with the SEC;
(ii) If on or prior to the Effectiveness Date, the Initial Shelf
Registration has not been declared effective by the SEC; or
(iii) If after the Initial Shelf Registration is declared effective
(A) the Initial Shelf Registration thereafter ceases to be
effective and a Subsequent Shelf Registration covering the
Registrable Securities has not become effective or (B) a Shelf
Registration or the related prospectus ceases to be usable
(except as permitted in Section 3(b) hereof) in connection
with resales of Registrable Securities during the periods
specified herein because either (1) any event occurs as a
result of which the related prospectus forming part of such
Shelf Registration would include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances
under which they were made not misleading, or (2) it shall be
necessary to amend such Shelf Registration or supplement the
related prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Additional Interest shall accrue on outstanding Convertible
Notes constituting Registrable Securities over and above the interest set forth
in the title of the
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Convertible Notes and shall accrue on outstanding Underlying Shares constituting
Registrable Securities, in each case from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a rate of 0.50% per annum of the
Amount of such Registrable Securities. The Company shall notify the Trustee
within one business day after each and every date on which a Registration
Default occurs.
(b) A Registration Default referred to in
Section 3(a)(iii)(B) hereof shall be deemed
not to have occurred and be continuing in
relation to the Shelf Registration or the
related prospectus if (i) such Registration
Default has occurred solely as a result of
(x) the filing of a post-effective amendment
to such Shelf Registration to incorporate
annual audited financial information with
respect to the Company where such post-
effective amendment is not yet effective and
needs to be declared effective to permit
Holders to use the related prospectus or (y)
other material events with respect to the
Company that would need to be described in
such Shelf Registration or the related
prospectus and (ii) in the case of clause
(y), the Company is proceeding promptly and
in good faith to amend or supplement such
Shelf Registration and related prospectus to
describe such events; provided, however,
that in any case if such Registration
Default occurs for a continuous period in
excess of 30 days, Additional Interest shall
be payable in accordance with
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Section 3(a) hereof from the day such
Registration Default occurs until such
Registration Default is cured.
(c) Any amount of Additional Interest due
pursuant to clause (i), (ii) or (iii) of
Section 3(a) hereof will be payable in cash
on each February 15 and August 15 (a
"Damages Payment Date") to the Holder to
whom regular interest is payable on such
Damages Payment Date with respect to
Convertible Notes that are Registrable
Securities and to the Person that is a
registered Holder 15 days prior to such
Damages Payment Date with respect to
Underlying Shares that are Registrable
Securities. The amount of Additional
Interest for Registrable Securities will be
determined by multiplying the applicable
Additional Interest rate by the Amount of
such Registrable Securities on the Damages
Payment Date following such Registration
Default in the case of the first such
payment of Additional Interest with respect
to a Registration Default (and thereafter at
the next succeeding Damages Payment Date
until the cure of such Registration
Default), multiplied by a fraction, the
numerator of which is the number of days
such Additional Interest rate was applicable
during such period (determined on the basis
of a 360-day year comprised of twelve 30-day
months), and the denominator of which is
360.
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4. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 hereof, the Company shall effect such registrations to permit the sale
of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the
Filing Date, a Registration Statement or
Registration Statements as prescribed by
Section 2 hereof, and use its reasonable
best efforts to cause each such Registration
Statement to become effective and remain
effective as provided herein; provided,
however, that the Company shall furnish to
and afford the Holders of the Registrable
Securities covered by such Registration
Statement, their counsel and the managing
underwriters, if any, a reasonable
opportunity to review copies of all such
documents (including copies of any documents
to be incorporated by reference therein and
all exhibits thereto) proposed to be filed
(in each case where possible at least five
business days prior to such filing and where
not possible as promptly as possible). The
Company shall not file any Registration
Statement or Pro spectus or any amendments
or supplements thereto if the Holders of a
majority in Amount of the Registrable
Securities covered by such
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Registration Statement, their counsel, or
the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such
amendments and post-effective amendments to
each Shelf Registration, as may be necessary
to keep such Registration Statement
continuously effective for the Effectiveness
Period; cause the related Prospectus to be
supplemented by any Prospectus supplement
required by applicable law, and as so
supplemented to be filed pursuant to Rule
424 (or any similar provisions then in
force) promulgated under the Securities Act;
and comply with the provisions of the Secu
rities Act and the Exchange Act applicable
to it with respect to the disposition of all
securities covered by such Registration
Statement as so amended or in such
Prospectus as so supplemented. The Company
shall be deemed not to have used its
reasonable best efforts to keep a
Registration Statement effective during the
Effectiveness Period if it voluntarily takes
any action that would result in selling
Holders of the Registrable Securities
covered thereby not being able to sell such
Registrable Securities during that period
unless such action is required by applicable
law or unless the Company complies with this
Agreement, including without limitation the
provisions of
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Section 4(k) hereof and the last paragraph
of Section 4(t) hereof.
(c) Notify the selling Holders of shares of
Registrable Securities, their counsel and
the managing underwriters, if any, promptly
(but in any event within two business days),
and confirm such notice in writing, (i) when
a Prospectus or any prospectus supplement or
post-effective amendment has been filed,
and, with respect to a Reg istration
Statement or any post-effective amendment,
when the same has become effective under the
Securities Act (including in such notice a
written statement that any Holder may, upon
request, obtain, at the sole expense of the
Company, one conformed copy of such
Registration Statement or post-effective
amendment including financial statements and
schedules, documents incorporated or deemed
to be incorporated by reference and
exhibits), (ii) (A) of the receipt of any
written comments by the SEC or its staff,
(B) of the request by the SEC or its staff
for amendments or supplements to a
Registration Statement or a Prospectus, or
(C) of the issuance by the SEC of any stop
order suspending the effectiveness of a
Registration Statement or of any order
preventing or suspending the use of any
preliminary prospectus or the initiation of
any proceedings for that purpose, (iii) if
at any time when a prospectus is required by
the Securities Act to be delivered
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in connection with sales of the Registrable
Securities the representations and
warranties of the Company contained in any
agreement (including any underwriting
agreement), contemplated by Section 4(m)
hereof cease to be true and correct in all
material respects, (iv) of the happening of
any event, the existence of any condition or
any information becoming known that makes
any statement made in such Registration
Statement or related Prospectus or any
document incorporated or deemed to be
incorporated therein by reference untrue in
any material respect or that requires the
making of any changes in or amendments or
supplements to such Registration Statement,
Prospectus or documents so that, in the case
of the Registration Statement, it will not
contain any untrue statement of a material
fact or omit to state any material fact
required to be stated therein or necessary
to make the statements therein not
misleading, and that in the case of the
Prospectus, it will not contain any untrue
statement of a material fact or omit to
state any material fact required to be
stated therein or necessary to make the
statements therein, in the light of the
circumstances under which they were made,
not misleading and (v) of the Company's
determination that a post-effective
amendment to a Registration Statement would
be appropriate.
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(d) Use its reasonable best efforts to prevent
the issuance of any order suspending the
effectiveness of a Registration Statement or
of any order preventing or suspending the
use of a Prospectus and, if any such order
is issued, to use its reasonable best
efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If requested by the managing underwriter or
underwriters (if any), or the Holders of a
majority in Amount of the Registrable
Securities being sold in connection with an
underwritten offering, (i) promptly
incorporate in a prospectus supplement or
post-effective amendment such information as
the managing underwriter or underwriters (if
any), such Holders or counsel for any of
them determine is reasonably necessary to be
included therein, (ii) make all required
filings of such prospectus supplement or
such post-effective amendment as soon as
reasonably practicable after the Company has
received notification of the matters to be
incorporated in such prospectus supplement
or post-effective amendment and (iii)
supplement or make amendments to such
Registration Statement.
(f) Furnish to each selling Holder of
Registrable Securities and to counsel and
each managing underwriter, if any, at the
sole
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expense of the Company, one conformed copy
of the Registration Statement or
Registration Statements and each
post-effective amendment thereto, including
financial statements and schedules, and, if
requested, all documents incorporated or
deemed to be incorporated therein by
reference and all exhibits.
(g) Deliver to each selling Holder of
Registrable Securities, their respective
counsel, and the underwriters, if any, at
the sole expense of the Company, as many
copies of the Prospectus (including each
form of preliminary prospectus) and each
amendment or supplement thereto and any
documents incorporated by reference therein
as such Persons may reasonably request; and,
subject to the second paragraph of Section
4(t) hereof, the Company hereby consents to
the use of such Prospectus and each
amendment or supplement thereto by each of
the selling Holders of Registrable
Securities and the underwriters or agents,
if any, and dealers (if any), in connection
with the offering and sale of the
Registrable Securities covered by such
Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable
Securities, to use its reasonable best
efforts to register or qualify, to the
extent required by applicable law, and to
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cooperate with the selling Holders of
Registrable Securities, the managing
underwriter or underwriters, if any, and
their respective counsel in connection with
the registration or qualification (or
exemption from such registration or
qualification) of such Registrable
Securities or offer and sale under the
securities or Blue Sky laws of such
jurisdictions within the United States as
any selling Holder, or the managing
underwriter or underwriters reasonably
request; provided, however, that where
Registrable Securities are offered other
than through an underwritten offering, the
Company agrees to cause the Company's
counsel to perform Blue Sky investigations
and file registrations and qualifications
required to be filed pursuant to this
Section 4(h); keep each such registration or
qualification (or exemption therefrom)
effective during the period such
Registration Statement is required to be
kept effective and do any and all other acts
or things reasonably necessary or advisable
to enable the disposition in such
jurisdictions of the Registrable Securities
covered by the applicable Registration
Statement; provided, however, that the
Company shall not be required to qualify as
a foreign corporation or to execute a
general consent to service of process in any
jurisdiction or subject itself to
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taxation generally in any jurisdiction.
(i) Cooperate with the selling Holders of
Registrable Securities and the managing
underwriter or underwriters, if any, to
facilitate the timely preparation and
delivery of certificates representing shares
of Registrable Securities to be sold, which
certificates shall not bear any restrictive
legends and shall be in a form eligible for
deposit with The Depository Trust Company;
and enable such shares of Registrable
Securities to be in such denominations and
registered in such names as the managing
underwriter or underwriters, if any, or
Holders may reasonably request.
(j) Use its reasonable best efforts to cause the
Registrable Securities covered by the Shelf
Registration Statement to be registered with
or approved by such other governmental
agencies or authorities as may be necessary
to enable the seller or sellers thereof or
the underwriter or underwriters, if any, to
consummate the disposition of such
Registrable Securities, except as may be
required solely as a consequence of the
nature of such selling Holder's business, in
which case the Company will cooperate in all
reasonable respects with the filing of such
Registration Statement and the granting of
such approvals.
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(k) Upon the occurrence of any event
contemplated by paragraph 4(c)(ii)(C),
4(c)(iv) or 4(c)(v) hereof, as promptly as
practicable prepare and (subject to Section
4(a) hereof) file with the SEC, at the sole
expense of the Company, a supplement or
post-effective amendment to the Registration
Statement or a supplement to the related
Prospectus or any document incorporated or
deemed to be incorporated therein by
reference, or file any other required
document so that, as thereafter delivered to
the purchasers of the Registrable Securities
being sold thereunder, any such Prospectus
will not contain an untrue statement of a
material fact or omit to state a material
fact required to be stated therein or
necessary to make the statements therein, in
the light of the circumstances under which
they were made, not misleading; provided,
however, that the Company may delay
preparing, filing and distributing any such
supplement or amendment (and continue the
suspension of the use of the Prospectus) if
the Company determines in good faith that
such supplement or amendment would, in the
reasonable judgment of the Company, (i)
interfere with or affect the negotiation or
completion of a transaction that is being
contemplated by the Company (whether or not
a final decision has been made to undertake
such transaction) or (ii) involve initial or
continuing disclosure
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obligations that are not in the best
interests of the Company's shareholders at
such time; provided, further, that neither
such delay nor such suspension with respect
to all matters in clause (i) or (ii) shall
extend for a period of more than 30 days in
any three-month period or more than 90 days
for all such periods in any twelve-month
period and shall not affect the Company's
obligation to pay Additional Interest as
contemplated in Section 3.
(l) Prior to the effective date of the first
Regis tration Statement relating to the
Registrable Securities, (i) provide the
Trustee with certificates for the Regis
trable Securities in a form eligible for
deposit with The Depository Trust Company
and (ii) provide a CUSIP number for the
Registrable Securities.
(m) In connection with any underwritten offering
of Registrable Securities pursuant to a
Shelf Registration, enter into an
underwriting agreement as is customary in
underwritten offerings of securities similar
to the Registrable Securities and take all
such other actions as are reasonably
requested by the managing underwriter or
underwriters; in order to expedite or
facilitate the registration or the
disposition of such Registrable Securities
and, in such connection, (i) make such
representations and
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warranties to, and covenants with, the
underwriters with respect to the business of
the Company and its subsidiaries (including
any acquired business, properties or entity,
if applicable) and the Registration
Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by
reference therein, in each case, as are
customarily made by issuers to underwriters
in underwritten offerings of securities
similar to the Registrable Securities and
confirm the same in writing if and when
requested; (ii) obtain the written opinion
of counsel to the Company and written
updates thereof in form, scope and substance
reasonably satisfactory to the managing
underwriter or underwriters, addressed to
the underwriters covering the matters
customarily covered in opinions requested in
underwritten offerings of securities similar
to the Registrable Securities and such other
matters as may be reasonably requested by
the managing underwriter or underwriters;
(iii) obtain "cold comfort" letters and
updates thereof in form, scope and substance
reasonably satisfactory to the managing
underwriter or underwriters from the
independent certified public accountants of
the Company (and, if necessary, any other
independent certified public accountants of
any subsidiary of the Company or of any
business acquired by the Company for which
financial statements and financial
-22-
data are, or are required to be, included or
incorporated by reference in the
Registration Statement), addressed to each
of the underwriters, such letters to be in
customary form and covering matters of the
type customarily covered in "cold comfort"
letters in con nection with underwritten
offerings of securities similar to the
Registrable Securities and such other
matters as reasonably requested by the
managing underwriter or underwriters; and
(iv) if an underwriting agreement is entered
into, the same shall contain indemnification
provisions and procedures no less favorable
than those set forth in Section 6 hereof (or
such other provisions and procedures
acceptable to Holders of a majority in
Amount of Registrable Securities covered by
such Registration Statement and the managing
underwriter or underwriters or agents) with
respect to all parties to be indemnified
pursuant to said Section. The above shall be
done at each closing under such underwriting
agreement, or as and to the extent required
thereunder.
(n) Make available for inspection by any selling
Holder of such Registrable Securities being
sold, any underwriter participating in any
such disposition of Registrable Securities,
if any, and any attorney, accountant or
other agent retained by any such selling
-23-
Holder, or underwriter (collectively, the
"Inspectors"), at the offices where normally
kept, during reasonable business hours at
such time or times as shall be mutually
convenient for the Company and the
Inspectors as a group, all financial and
other records, pertinent corporate documents
and instruments of the Company and its
subsidiaries (collectively, the "Records")
as shall be reasonably necessary to enable
them to exercise any applicable due
diligence responsibilities, and cause the
officers, directors and employees of the
Company and its subsidiaries to supply all
information reasonably requested by any such
Inspector in connection with such
Registration Statement. Records that the
Company determines, in good faith, to be
confidential and any Records that it
notifies the Inspectors are confidential
shall not be disclosed by any Inspector
unless (i) the disclosure of such Records is
necessary to avoid or correct a material
misstatement or material omission in such
Registration Statement, (ii) the release of
such Records is ordered pursuant to a
subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of
such information is, in the opinion of
counsel for any Inspector, necessary or
advisable in connection with any action,
claim, suit or proceeding, directly,
involving or potentially involving
-24-
such Inspector and arising out of, based
upon, relating to, or involving this
Agreement or any transactions contemplated
hereby or arising hereunder or (iv) the
information in such Records has been made
generally available to the public other than
through the acts of such Inspector. Each
selling Holder of such Registrable
Securities will be required to agree that
information obtained by it as a result of
such inspections shall be deemed
confidential and shall not be used by it as
the basis for any market transactions in the
securities of the Company unless and until
such information is generally available to
the public. Each selling Holder of such
Registrable Securities will be required to
further agree that it will, upon learning
that disclosure of such Records is sought in
a court of competent jurisdiction, give
notice to the Company and allow the Company
to undertake appropriate action to prevent
disclosure of the Records deemed
confidential at the Company's sole expense.
(o) Provide (i) the Holders of the Registrable
Securities to be included in such
registration statement and not more than one
counsel for all the Holders of such
Registrable Securities, (ii) the
underwriters (which term, for purposes of
this Registration Rights Agreement, shall
include a person deemed to be an underwriter
-25-
within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (iii) the
sales or placement agent, if any, thereof,
and (iv) one counsel for such underwriters
or agents, reasonable opportunity to
participate in the preparation of such
registration statement, each prospectus
included therein or filed with the SEC, and
each amendment or supplement thereto.
(p) Comply with all applicable rules and
regulations of the SEC and make generally
available to its securityholders earning
statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule
promulgated under the Securities Act) no
later than 45 days after the end of any
12-month period (or 90 days after the end of
any 12-month period if such period is a
fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable
Securities are sold to underwriters in a
firm commitment or best efforts underwritten
offering and (ii) if not sold to
underwriters in such an offering, commencing
on the first day of the first fiscal quarter
of the Company after the effective date of a
Registration Statement, which statements
shall cover said 12-month periods.
(q) Cooperate with each seller of Registrable
Securities covered by any Registration
Statement and each
-26-
underwriter, if any, participating in the
disposition of such Registrable Securities
and their respective counsel in connection
with any filings required to be made with
the National Association of Securities
Dealers, Inc. (the "NASD"), including if the
Rules of Fair Practice and the By- Laws of
the NASD or any successor thereto, as
amended from time to time (including
Schedule E thereto) so require, engaging a
"qualified independent underwriter" ("QIU")
as contemplated therein and making Records
available to such QIU as though it were a
participating underwriter for the purposes
of Section 4(n) and otherwise applying the
provisions of this Agreement to such QIU
(including indemnification) as though it
were a participating underwriter.
(r) Cause the Indenture to be qualified under
the TIA not later than the effective date of
the first Registration Statement relating to
the Registrable Securities; and in
connection therewith, cooperate with the
Trustee and the Holders of the Registrable
Securities to effect such changes to the
Indenture as may be required for the
Indenture to be so qualified in accordance
with the terms of the TIA; and execute, and
use its reasonable best efforts to cause the
Trustee to execute, all documents as may be
required to effect such changes, and all
other forms and documents
-27-
required to be filed with the SEC to enable
the Indenture to be so qualified in a timely
manner.
(s) Use its reasonable best efforts to cause the
Registrable Securities covered by a
Registration Statement, to be rated with the
appropriate rating agencies, if so requested
by the Holders of a majority in Amount of
Registrable Securities covered by such
Registration Statement, or the managing
underwriter or underwriters, if any.
(t) Use its reasonable best efforts to take all
other steps necessary or advisable to effect
the registration of the Registrable
Securities covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request to the
extent necessary or advisable to comply with the Securities Act. The Company may
exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such seller not materially misleading or to 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 they were made.
-28-
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(c)(ii)(C),
4(c)(iv) or 4(c)(v) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto.
5. Registration Expenses
(a) All fees and expenses incident to the
performance of or compliance with this
Agreement by the Company shall be borne by
the Company whether or not a Shelf
Registration is filed or becomes effective,
including, without limitation, (i) all
registration and filing fees (including,
without limitation, (A) fees with respect to
filings required to be made with the NASD in
connection with an underwritten offering and
(B) fees and expenses of compliance with
state securities or Blue Sky laws
(including, without limitation, reasonable
fees and disbursements of counsel in
connection with Blue Sky qualifications of
the Registrable Securities and determination
of the eligibility of the Registrable
Securities for investment under the laws of
such jurisdictions as provided in Section
4(h) hereof, in the case of Registrable
Securities), (ii) printing
-29-
expenses, including, without limitation,
expenses of printing certificates for
Registrable Securities in a form eligible
for deposit with The Depository Trust
Company and of printing prospectuses if the
printing of prospectuses is requested by the
managing underwriter or underwriters, if
any, by the Holders of a majority of shares
of the Registrable Securities included in
any Registration Statement, (iii) messenger,
telephone and delivery expenses, (iv) fees
and disbursements of counsel for the Company
and fees and disbursements of special
counsel for the sellers of Registrable
Securities (subject to the provisions of
Section 5(b) hereof), (v) fees and
disbursements of all independent certified
public accountants referred to in Section
4(m)(iii) hereof (including, without
limitation, the expenses of any special
audit and "cold comfort" letters required by
or incident to such performance), (vi)
rating agency fees, (vii) Securities Act
liability insurance, if the Company desires
such insurance, (viii) fees and expenses of
all other Persons retained by the Company,
(ix) internal expenses of the Company
(including, without limitation, all salaries
and expenses of officers and employees of
the Company performing legal or accounting
duties), (x) the expense of any annual
audit, (xi) the fees and expenses incurred
in connection with the listing of the
securities
-30-
to be registered on any securities exchange,
if applicable, and (xii) the expenses
relating to printing, word processing and
distributing all Registration Statements,
underwriting agreements, securities sales
agreements, indentures and any other
documents necessary in order to comply with
this Agreement.
(b) The Company shall reimburse the Holders of
the Registrable Securities being registered
in a Shelf Regis tration for the reasonable
fees and disbursements of not more than one
counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority
in Amount of the Registrable Securities to
be included in such Registration Statement
and other reasonable out-of-pocket expenses
of such Holders of Registrable Securities
incurred in connection with the registration
and sale of the Registrable Securities
pursuant to any Registration Statement.
6. Indemnification
(a) The Company will indemnify and hold harmless
each Holder of Registrable Securities, each
Person that participates as an underwriter
or sales agent in any sale of such
Registrable Securities (each a
"Participant") against any losses, claims,
damages or liabilities, joint or several, to
which such Participant may become subject,
-31-
under the Securities Act or the Exchange 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 or
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 necessary in order
to make the statements therein, in the light
of the circumstances under which they were
made, not misleading, and will reimburse
each Purchaser for any legal or other
expenses reasonably incurred by such
Purchaser 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
Participant specifically for use therein;
provided, further, that the Company will not
be liable if such untrue statement or
omission or alleged untrue statement or
omission was
-32-
contained or made in any preliminary
prospectus and corrected in the Prospectus
or any amendment or supplement thereto and
the Prospectus does not contain any other
untrue statement or omission or alleged
untrue statement or omission of a material
fact that was the subject matter of the
related proceeding and any such loss,
liability, claim, damage or expense suffered
or incurred by the Participants resulted
from any action, claim or suit by any Person
who purchased Registrable Securities that is
the subject thereof from such Participant
and it is established in the related
proceeding that such Participant failed to
deliver or provide a copy of the Prospectus
(as amended or supplemented) to such Person
with or prior to the confirmation of the
sale of such Registrable Securities sold to
such Person if required by applicable law,
unless such failure to deliver or provide a
copy of the Prospectus (as amended or
supplemented) was a result of noncompliance
by the Company with Section 4 of this
Agreement.
(b) The Company may require, as a condition to
including Registrable Securities in any
Registration Statement, that the related
Participants agree severally and not jointly
to indemnify and hold harmless the Company
against any losses, claims, damages or
liabilities to which the Company may become
subject, under the
-33-
Securities Act or the Exchange 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 or Prospectus, or
any amendment or supplement thereto, or any
related prospectus, or arise out of or are
based upon the omission or the alleged
omission to state therein a material fact
necessary in order to make the statements
therein, in the light of the circumstances
under which they were made, 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 Participant
specifically for use therein, and will
reimburse any legal or other expenses
reasonably incurred by the Company in
connection with investigating or defending
any such loss, claim, damage, liability or
action as such expenses are incurred. The
liability of any Participant under this
subsection shall in no event exceed the net
proceeds received by such Participant from
sales of Registrable Securities giving rise
to such obligations.
-34-
(c) Promptly after receipt by an indemnified
party under this Section of notice of the
commencement of any action, such indemnified
party will, if a claim in respect thereof is
to be made against the indemnifying party
under subsection (a) or (b) above, 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 other wise than under
subsection (a) or (b) above. In case any
such action is brought against any
indemnified party and it notifies the
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 for any legal or other
expenses subsequently incurred by such
indemnified party in connection with the
defense thereof other than reasonable costs
of
-35-
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.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to
hold harmless an indemnified party under
subsection (a) or (b) above, 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) or (b) above (i) in such
proportion as is appropriate to reflect the
relative benefits received by the Company on
the one hand and the Participants on the
other from the offering of the Registrable
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 on the one hand and the
Participants on the other in connection with
-36-
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 on the one
hand and any Participant on the other shall
be deemed to be in the same proportion as
the total net proceeds from the initial
offering of the Registrable Securities
(before deducting expenses) received by the
Company bear to the total net proceeds
received by such Participant from sales of
Registrable Securities giving rise to such
obligations. 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 or such Participant 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 (d) 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 (d). Notwithstanding the
provisions
-37-
of this subsection (d), no Participant shall be
required to contribute any amount in excess
of the amount by which the net proceeds
received by such Participant from sales of
Registrable Securities exceeds the amount of
any damages which such Participant has
otherwise been required to pay by reason of
such untrue or alleged untrue statement or
omission or alleged omission. No person
guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from
any person who was not guilty of such
fraudulent misrepresentation. The
Participants' obligations in this subsection
(d) to contribute are several in proportion
to their respective Amounts of Registrable
Securities registered pursuant to this
Agreement, and not joint.
(e) The obligations of the Company under this
Section shall be in addition to any
liability which the Company may otherwise
have and shall extend, upon the same terms
and conditions, to each officer, director
and partner of each Participant and to each
Person, if any, who controls any Participant
within the meaning of the Securities Act or
the Exchange Act; and the obligations of the
Participant under this Section shall be in
addition to any liability which the
respective Participants otherwise have and
shall extend, upon the
-38-
same terms and conditions, to each officer
and director of the Company and to each
Person, if any, who controls the Company
within the meaning of the Securities Act or
the Exchange Act.
7. Rules 144 and 144A.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and such rules and
regulations and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Securities, make
publicly available annual reports and such information, documents and other
reports of the type specified in Sections 13 and 15(d) of the Exchange Act. The
Company further covenants for so long as any Registrable Securities remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Securities in connection with any sale thereof and any prospective purchaser of
such Registrable Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Registrable Securities pursuant to Rule 144A.
8. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf Registration
is to be sold in an underwritten offer ing, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in Amount of such Registrable Securities included
in such offering and reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on
-39-
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
9. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the Holders from time to time of Registrable Securities that:
(a) Each registration statement covering
Registrable Securities and each prospectus
(including any preliminary or summary
prospectus) contained therein or furnished
pursuant to this Agreement and any further
amendments or supplements to any such
registration statement or prospectus, when
it becomes effective or is filed with the
SEC, as the case may be, and, in the case of
an underwritten offering of Registrable
Securities, at the time of the closing under
the underwriting agreement relating thereto,
will conform in all material respects to the
requirements of the Securities Act and the
TIA and the rules and regulations of the SEC
and any such registration statement and any
amendment thereto will 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 and any
such prospectus or any amendment or
supplement thereto will not include
-40-
any untrue statement of a material fact or
omit to state a material fact required to be
stated therein or necessary to make the
statements therein not misleading in light
of the circumstances then existing; and at
all times subsequent to the effective time
of any such registration statement when a
prospectus would be required to be delivered
under the Securities Act, other than from
(i) such time as a notice has been given to
Holders of Registrable Securities pursuant
to the last paragraph of Section 4(t) or
pursuant to Section 4(k) hereof until (ii)
such time as the Company furnishes an
amended or supplemented prospectus pursuant
to Section 4(k) hereof or otherwise gives an
Advice, each such registration statement,
and each prospectus (including any summary
prospectus) con tained therein or furnished
pursuant to Section 4(k) or Section 4(g)
hereof, as then amended or supplemented,
will conform in all material respects to the
requirements of the Securities Act and the
TIA and the rules and regulations of the
Commission and will not include any untrue
statement of any material fact or omit to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading in the light of the
circumstances then existing; provided,
however, that this representation and
warranty does not apply to any statements or
omissions from a registration
-41-
statement or prospectus (including any
preliminary or summary prospectus) based
upon written information furnished to the
Company by any underwriter, sales agent or
Holder specifically for use therein.
(b) Any documents incorporated by reference in
any prospectus referred to in Section 4(a)
hereof, when they become or became effective
or are or were filed with the SEC, as the
case may be, will conform or conformed in
all material respects to the requirements of
the Securities Act or the Exchange Act, as
applicable, and none of such documents will
include or included any untrue statement of
a material fact or will omit or omitted to
state any material fact required to be
stated therein or necessary to make the
statements therein not misleading; provided,
however, that this representation and
warranty does not apply to any statements or
omissions from a registration statement or
the prospectus (including any preliminary or
summary prospectus) based upon written
information furnished to the Company by any
underwriter, sales agent or Holder
specifically for use therein.
(c) The issuance and sale of the Registrable
Securities did not and will not, and the
execution, delivery and performance of this
Agreement and the consummation of
-42-
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,
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 Agreement (as defined in the Purchase
Agreement) 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 the Company or any such subsidiary
has agreed to become bound, or to which any
of the 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.
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has
not, as of the date hereof, and the Company
shall not, after the date of this Agreement,
enter into any agreement with respect to any
of its securities that is inconsistent with
the rights granted to the Holders of
Registrable Securities in this Agreement or
otherwise conflicts with the provisions
hereof. The Company has not
-43-
entered and will not enter into any
agreement with respect to any of its
securities that will grant to any Person
piggyback registration rights with respect
to a Registration Statement, except to the
extent any existing right has heretofore
been waived.
(b) Adjustments Affecting Registrable
Securities. The Company shall not, directly
or indirectly, take any action with respect
to the Registrable Securities as a class
that would adversely affect the ability of
the Holders of Registrable Securities to
include such Registrable Securities in a
registration undertaken pursuant to this
Agreement.
(c) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified
or supplemented, and waivers or consents to
departures from the provisions hereof may
not be given, otherwise than with the prior
written consent of the Company and the
Holders of not less than a majority in
Amount of the then outstanding Registrable
Securities; provided, however, that Section
6 and this Section 10(c) may not be amended,
modified or supplemented
-44-
without the prior written consent of the
Company and each Holder (including, in the
case of an amendment, modification or
supplement of Section 6, any person who was
a Holder of Registrable Securities, disposed
of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof
with respect to a matter that relates
exclusively to the rights of Holders of
Registrable Securities whose securities are
being sold pursuant to a Registration
Statement and that does not directly or
indirectly affect, impair, limit or
compromise the rights of other Holders of
Registrable Securities may be given by
Holders of at least a majority in Amount of
the Registrable Securities being sold by
such Holders pursuant to such Registration
Statement; provided, however, that the
provisions of this sentence may not be
amended, modified or supplemented except in
accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other
communications provided for or permitted
hereunder shall be made in writing by
hand-delivery,
-45-
registered first-class mail, next-day air
courier or facsimile:
(1) if to a Holder of the Registrable Securities, at the most
current address of such Holder on the Security Register (as defined in
the Indenture), in the case of Convertible Notes, and the stock ledger
of the Company, in the case of Class A Common Stock, with a copy in
like manner to the Initial Purchasers as follows:
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
FIRST UNION SECURITIES, INC.
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investment Banking Department
Transactions Advisory Group
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchasers, at the addresses specified in Section
10(d)(1);
-46-
(3) if to the Company, at the addresses as follows:
American Tower Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with copies to:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon
the successors and assigns of each of the
parties hereto, including the Holders;
provided, however, that this Agreement shall
not inure to the benefit of or be binding
upon a successor or assign of a Holder
unless and except to the extent such
successor or assign holds Registrable
Securities.
(f) Counterparts. This Agreement may be executed
in any number of counterparts and by the
parties hereto in separate counterparts,
each of which when so executed shall be
deemed to be an original
-47-
and all of which taken together shall
constitute one and the same agreement.
(g) Headings. The headings in this Agreement are
for convenience of reference only and shall
not limit or otherwise affect the meaning
hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED
WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
(i) Severability. If any term, provision,
covenant or restriction of this Agreement is
held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions,
covenants and restrictions set forth herein
shall remain in full force and effect and
shall in no way be affected, impaired or
invalidated, and the parties hereto shall
use their best efforts to find and employ an
alternative means to achieve the same or
substantially the same result as that
contemplated by such term, provision,
covenant or restriction. It is hereby
stipu-
-48-
lated and declared to be the intention of
the parties that they would have executed
the remaining terms, provisions, covenants
and restrictions without including any of
such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Securities Held by the Company or Its
Affiliates. Whenever the consent or approval
of Holders of a specified percentage in
Amount of Registrable Securities is required
hereunder, Registrable Securities held by
the Company or its affiliates (as such term
is defined in Rule 405 under the Securities
Act) shall not be counted in determining
whether such consent or approval was given
by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of
Registrable Securities are intended third
party beneficiaries of this Agreement and
this Agreement may be enforced by such
Persons.
(l) Entire Agreement. This Agreement, together
with the Purchase Agreement and the
Indenture, is intended by the parties as a
final and exclusive statement of the
agreement and understanding of the parties
hereto in respect of the subject matter
contained herein and therein and any and all
prior oral or written agreements,
representations, or warranties, contracts,
-49-
understandings, correspondence,
conversations and memoranda between the
Initial Purchasers on the one hand and the
Company on the other, or between or among
any agents, representatives, parents,
subsidiaries, affiliates, predecessors in
interest or successors in interest with
respect to the subject matter hereof and
thereof are merged herein and replaced
hereby.
-50-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
AMERICAN TOWER CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President/
Corporate Controller
CREDIT SUISSE FIRST BOSTON
CORPORATION
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
FIRST UNION SECURITIES, INC.
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director