EXHIBIT 10.27
AMERICAN TOWER SYSTEMS CORPORATION
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of January 8, 1998 by and
among American Tower Systems Corporation, a Delaware corporation ("ATS"), and
each of the undersigned individuals (individually a "Purchaser" and
collectively, the "Purchasers").
WHEREAS, the Purchasers desire to purchase, and ATS is willing to sell,
shares of Class A Common Stock, par value $.01 per share, of ATS (the "Class A
Common Stock"), shares of Class B Common Stock, par value $.01 per share, of ATS
(the "Class B Common Stock), and shares of Class C Common Stock, par value $.01
per share, of ATS (the "Class C Common Stock and, collectively with the Class A
Common Stock and the Class B Common Stock, the "ATS Common Stock"), all on the
terms and subject to the conditions of this Agreement; and
WHEREAS, ATS is party to an Agreement and Plan of Reorganization (as
heretofore amended, the "Gearon Merger Agreement"), dated as of November 21,
1997, with Gearon & Company, Inc., a Georgia corporation ("Gearon"), pursuant to
which Gearon will be merged (the "Gearon Merger") with and into ATS and it is a
condition of the consummation of the Gearon Merger that an agreement of the
nature contemplated hereby shall have been executed, delivered and consummated;
and
WHEREAS, ATS is party to an Agreement and Plan of Reorganization (the "ATC
Merger Agreement"), dated as of December 12, 1997, with American Tower
Corporation, a Delaware corporation ("ATC"), pursuant to which ATC will be
merged (the "ATC Merger") with and into ATS and it is a condition of the
consummation of the ATC Merger that an agreement of the nature contemplated
hereby shall have been executed, delivered and consummated; and
WHEREAS, ATS is a wholly-owned subsidiary of American Radio Systems
Corporation, a Delaware corporation ("ARS"); and
WHEREAS, ATS and the Purchasers wish to provide for the terms and
conditions of the purchase and sale of the ATS Common Stock and certain related
matters;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, in order to satisfy a condition to consummation of
each of the Gearon Merger and the ATC Merger, and other valuable consideration,
the receipt and adequacy whereof are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby covenant and agree as follows:
SECTION 1. Authorization and Closing.
(a) Authorization of the Securities. ATS has authorized the issue and
sale to the Purchasers, and the Purchasers, severally and not jointly, have
agreed to purchase, the respective number of shares of ATS Common Stock set
forth below opposite the names of the Purchasers (collectively, the "Subject
Shares") at a purchase price equal to $10.00 per share.
Name of Purchaser Number of Shares Class of Stock
---------------- ---------------- --------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇* 4,000,000 Class B
▇▇▇▇ Box* 450,000 Class A
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 300,000 Class A
Chase Equity Associates 2,000,000 Class C
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 25,000 Class A
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 400,000 Class A
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 25,000 Class A
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇* 465,000 Class B
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇* 22,500 Class B
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 15,000 Class A
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ 26,550 Class A
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Trust 80,000 Class B
▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Trust 82,450 Class B
Alden ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 35 Trust 22,500 Class A
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation 36,000 Class A
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 50,000 Class A
* Indicates that payment to be made in the form of a Purchaser Note
(collectively, the "Note Purchasers").
(b) Purchase and Sale of the Subject Stock. At the Closing, subject to
the terms and conditions set forth herein, ATS shall issue to each of the
Purchasers, and each of the Purchasers, severally and not jointly, shall acquire
from ATS, the respective number of Subject Shares set forth in Section 1(a). The
obligation of each of the Purchasers shall not be conditioned on any other
Purchaser satisfying its obligations under this Agreement. Payment of the
purchase price shall be made by the delivery by each Purchaser as follows:
(i) each of the Purchasers, other than the Note Purchasers, will
make payment in the form of a wire transfer of immediately available funds
or bank cashier's or certified check; and
(ii) each of the Note Purchasers will make payment in the form of
a promissory note (individually, a "Purchaser Note" and collectively, the
"Purchaser Notes") substantially in the form of Exhibit A attached hereto
and made a part hereof. Each Purchaser Note shall be secured by a pledge
of shares of Common Stock, par value $.01 per share, of ARS (the "ARS
Common Stock"), pursuant to the provisions of a pledge agreement
(individually a "Pledge Agreement" and collectively the "Pledge
Agreements") substantially in the form of Exhibit B attached hereto and
made a part hereof.
(c) The Closing. The closing (the "Closing") of the issue and acquisition
of the Subject Shares shall take place at the offices of ▇▇▇▇▇▇▇▇ & Worcester,
New York, New York at 10:00 a.m. simultaneously with the effectiveness of the
Gearon Merger, or at such other date and place as may be mutually agreeable
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to ATS and a majority in interest of the Purchasers. At the Closing, ATS shall
deliver to each of the Purchasers, against delivery of cash or the appropriate
Purchaser Notes and Pledge Agreements, as the case may be, stock certificates
evidencing the Subject Shares to which the respective Purchasers are entitled,
registered in the name of such Purchaser or his or its nominee. Any wire
transfer of funds shall be made to such bank account in the United States as
shall have been designated in writing by ATS not less than two (2) business days
prior to the Closing. ATS shall promptly notify each of the Purchasers of the
proposed date of consummation of the Gearon Merger.
SECTION 2. Conditions of each Purchaser's Obligation. The obligation of
each Purchaser to acquire the Subject Shares to be purchased by such Purchaser
at the Closing is subject to the satisfaction (or waiver in writing by such
Purchaser) as of the Closing of the following conditions:
(a) Representations and Warranties; Covenants. The
representations and warranties contained in Section 4 shall be true and
correct in all material respects at and as of the Closing as though then
made, except to the extent of changes caused by the transactions expressly
contemplated herein, and ATS shall have performed in all material respects
all of the covenants required to be performed by it hereunder prior to the
Closing.
(b) CBS Merger Agreement. ARS, R Acquisition Corp., a Delaware
corporation ("CBS Sub"), a wholly-owned subsidiary of CBS Corporation
(formerly Westinghouse Electric Corporation), a Pennsylvania corporation
("CBS")) and CBS have heretofore entered into an Agreement and Plan of
Merger, dated as of September 19, 1997, as amended and restated by an
Amended and Restated Agreement and Plan of Merger, dated as of December
18, 1997 (as so amended and restated, the "CBS Merger Agreement"), and the
CBS Merger Agreement shall be in full force and effect as of the Closing
and shall not have been amended or modified in any respect materially
adverse to ATS.
(c) Gearon Merger Agreement. The Gearon Merger Agreement shall
be in full force and effect as of the Closing and shall not have been
amended or modified in any respect materially adverse to ATS, and the
Gearon Merger shall have been or simultaneously to the Closing will be
consummated substantially in accordance with the terms of the Gearon
Merger Agreement.
(d) ATC Merger Agreement. The ATC Merger Agreement shall be in
full force and effect as of the Closing and shall not have been amended or
modified in any respect materially adverse to ATS.
(e) Registration Rights Agreement. ATS shall have executed and
delivered to each of the Purchasers an agreement substantially in the form
of Exhibit C attached hereto and made a part hereof (the "Registration
Rights Agreement").
(f) Blue Sky Clearance. ATS shall have made all filings under
applicable state securities laws necessary to consummate the issue of the
Subject Shares pursuant to this Agreement in compliance with such laws.
(g) Legal Opinion. ATS shall have delivered to each of the
Purchasers an opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel for ATS, as to
the due organizations and corporate existence of ATS, the due
authorization, execution, delivery and binding effect of this Agreement,
and the due authorization and valid issuance of the Subject Shares and
their fully paid and nonassessable status.
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(h) Proceedings. All corporate and other proceedings taken or
required to be taken by ATS in connection with the transactions
contemplated hereby to be consummated at or prior to the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Purchasers and their counsel.
(i) Closing Documents. ATS shall have delivered to each of the
Purchasers all of the following documents:
(i) an officer's certificate, dated the date of the
Closing, stating that the conditions specified in paragraphs (a)
through (f) of this Section have been satisfied in all material
respects;
(ii) certified copies of the resolutions duly adopted by
the ATS board of directors and, to the extent applicable, ARS, as
the sole stockholder of ATS, authorizing the execution, delivery
and performance of this Agreement, the CBS Merger Agreement, the
Gearon Merger Agreement, the ATC Merger Agreement and each of the
other agreements contemplated hereby, the issuance of the Subject
Shares, and the consummation of all other transactions
contemplated by this Agreement;
(iii) certified copies of the Restated Certificate of
Incorporation (the "Restated Certificate") and the bylaws of ATS,
each as in effect at the Closing;
(iv) certified copies of the CBS Merger Agreement, the
Gearon Merger Agreement and the ATC Merger Agreement as in effect
at the Closing;
(v) copies of all third party and governmental consents,
approvals and filings required in connection with the
consummation of the transactions contemplated hereby (including,
without limitation, all state securities law filings); and
(vi) such other documents, instruments and certificates
relating to the transactions contemplated by this Agreement as
any Purchaser or his or its counsel may reasonably request.
SECTION 3. Conditions of ATS' Obligation. The obligation of ATS to issue
and sell the Subject Shares to each Purchaser at the Closing is subject to the
satisfaction (or waiver in writing by ATS) as of the Closing of the following
conditions:
(a) Representations and Warranties; Covenants. The
representations and warranties of such Purchaser contained in Section 5
shall be true and correct in all material respects at and as of the
Closing as though then made, except to the extent of changes caused by the
transactions expressly contemplated herein, and such Purchaser shall have
performed in all material respects all of the covenants required to be
performed by him or it hereunder prior to the Closing.
(b) CBS Merger Agreement. The CBS Merger Agreement shall be in
full force and effect as of the Closing and shall not have been amended or
modified in any respect materially adverse to ATS.
(c) Gearon Merger Agreement. The Gearon Merger Agreement shall
be in full force and effect as of the Closing and shall not have been
amended or modified in any respect materially
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adverse to ATS, and the Gearon Merger shall have been or proposed
simultaneously with the Closing to be consummated substantially in
accordance with the terms of the Gearon Merger Agreement.
(d) ATC Merger Agreement. The ATC Merger Agreement shall be in
full force and effect as of the Closing and shall not have been amended or
modified in any respect materially adverse to ATS.
(e) Registration Rights Agreement. Each of the Purchasers shall
have executed and delivered to ATS the Registration Rights Agreement.
(f) Blue Sky Clearance. The issue and sale of the Subject Stock
shall not be in violation of any applicable state securities laws.
(g) Proceedings. All corporate and other proceedings taken or
required to be taken by such Purchaser in connection with the transactions
contemplated hereby to be consummated at or prior to the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to ATS and its counsel.
(h) Closing Documents. Such Purchaser shall have delivered to
ATS such documents, instruments and certificates relating to the
transactions contemplated by this Agreement as ATS or its counsel may
reasonably request and, in the case of the Note Purchasers, the Purchaser
Note and the Pledge Agreement, together with evidence of the pledge of
shares of ARS Common Stock contemplated by the Pledge Agreement.
SECTION 4. Representations and Warranties of ATS. As a material
inducement to the Purchasers to enter into this Agreement and purchase the
Subject Shares, ATS hereby makes the following representations and warranties to
each of the Purchasers.
(a) Organization and Corporate Power. ATS and each of its
subsidiaries is an Entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and is
qualified to do business in each jurisdiction in which the failure so to
qualify would reasonably be expected to have a material adverse effect on
the business, financial condition or results of operation of ATS and its
subsidiaries taken as a whole. ATS and each of its subsidiaries has all
requisite corporate and other power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently
proposed to be conducted and, in the case of ATS, to execute and deliver
and consummate the transactions contemplated by this Agreement.
(b) Material Statements and Omissions; Absence of Events. The
information with respect to ATS included in the ATS Information
Statement/Prospectus, dated December, 1997 heretofore delivered by ATS to
each of the Purchasers (the "ATS Information Statement/Prospectus") does
not and will not contain any untrue statement of a material fact and does
not and will not omit to state any material fact required to make any
statement contained herein or therein, in light of the circumstances under
which they were made, not misleading. Since the date of the most recent
financial statements set forth in the ATS Information
Statement/Prospectus, except to the extent described in the ATS
Information Statement/Prospectus, there has been no material adverse
change in ATS.
(c) Capital Stock and Related Matters.
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(i) The authorized and issued capital stock of ATS is as set forth in the
ATS Information Statement/Prospectus. ATS does not have outstanding any stock or
securities convertible or exchangeable for any shares of its capital stock or
containing any profit participation features, nor does it have outstanding any
rights or options to subscribe for or to purchase its capital stock or any stock
or securities convertible into or exchangeable for its capital stock or any
stock appreciation rights or phantom stock plans, except as set forth in the ATS
Information Statement/Prospectus. ATS is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its capital stock or any warrants, options or other rights to acquire
its capital stock. All of the outstanding shares of the ATS Common Stock are,
and all of the Subject Shares and the Exchanged Shares will, upon issuance
pursuant to the provisions of this Agreement, be, duly authorized, validly
issued, fully paid and nonassessable.
(ii) There are no statutory or, to the best of ATS' knowledge, contractual
stockholder preemptive rights or rights of refusal with respect to the issuance
of the Subject Shares or the Exchanged Shares. ATS has not violated any
applicable federal or state securities laws in connection with the offer, sale
or issuance of any of its capital stock, and, based on the representations and
warranties of the Purchasers set forth in Section 5(g), the offer, sale and
issuance of the Subject Shares and the Exchanged Shares hereunder do not require
registration under the Securities Act of 1933, as amended (the "Securities Act")
or any applicable state securities laws.
(d) Authorization; No Breach. The execution, delivery and performance of
this Agreement, the CBS Merger Agreement, the ATS Merger Agreement, the
Registration Rights Agreement and all other agreements contemplated hereby to
which ATS is or will be a party have been duly authorized by ATS. This
Agreement, the CBS Merger Agreement, the Gearon Merger Agreement, the ATC Merger
Agreement, the Registration Rights Agreement and all other agreements
contemplated hereby each constitutes a valid and binding obligation of ATS,
enforceable in accordance with its terms, except as (i) the enforceability
thereof may be limited by bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other laws of general applicability affecting the
enforcement of creditors' or secured parties' rights or debtors' obligations
generally and (ii) the availability of specific performance or other equitable
remedies may be limited by equitable principles of general applicability
(whether such matter is considered in a proceeding at law or in equity). The (x)
execution and delivery by ATS of this Agreement, the Registration Rights
Agreement and the Pledge Agreement, (y) offering, sale and issuance of the
Subject Shares and the Exchanged Shares hereunder, and (z) fulfillment of and
compliance with the respective terms hereof and thereof by ATS, do not and shall
not, except in respect of clause (z) above, for filings and other actions to be
performed upon the occurrence of certain future events, as contemplated by the
Registration Rights Agreement, (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii)
result in the creation of any lien, security interest, charge or encumbrance
upon ATS' or any subsidiary's capital stock or assets pursuant to, (iv) give any
third party the right to modify, terminate or accelerate any obligation under,
(v) result in a violation of, or (vi) require any authorization, consent,
approval, exemption or other action by or notice to any court or administrative
or governmental body pursuant to, the charter or by-laws or other organizational
documents of ATS or any subsidiary, or any law, statute, rule or regulation to
which ATS or any subsidiary is subject, or any contract, agreement, instrument,
order, judgment or decree to which ATS or any subsidiary is subject, which such
authorization, consent, approval, exemption, action or notice has not been
obtained, except in all cases for such exceptions as would not, individually or
in the aggregate, have a material adverse effect on the business, financial
conditions or results of operation of ATS and its subsidiaries taken as a whole.
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(e) Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement
binding upon ATS or any subsidiary. ATS shall pay, and hold each of the
Purchasers harmless against, any liability, loss or expense (including,
without limitation, reasonable attorneys' fees and out-of-pocket
expenses) arising in connection with any such claim.
(f) Governmental Consent, etc. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental
authority is required in connection with the execution, delivery and
performance by ATS of this Agreement or the other agreements contemplated
hereby, or the consummation by ATS of any other transactions contemplated
hereby or thereby, except as expressly contemplated herein or therein or
in the exhibits hereto or thereto.
SECTION 5. Representations and Warranties of each Purchaser. As a
material inducement to ATS to enter into this Agreement and issue and sell the
Subject Shares and exchange the Exchanged Shares, each of the Purchasers,
severally and not jointly with respect to himself or itself, hereby makes the
following representations and warranties to ATS and each of the other
Purchasers.
(a) Organization and Power. Such Purchaser, if a corporation,
partnership, trust or other legal entity, is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and has all requisite corporate, partnership, trust or other
power and authority to execute and deliver and consummate the transactions
contemplated by this Agreement.
(b) Authorization; No Breach. The execution, delivery and
performance of this Agreement, the Registration Rights Agreement and all
other agreements contemplated hereby (including without limitation in the
case of the Note Purchasers, the Purchaser Note and Pledge Agreement to be
delivered by such Purchaser) to which such Purchaser is or will be a party
have been duly authorized by such Purchaser. This Agreement, the
Registration Rights Agreement and all other agreements contemplated hereby
(including without limitation in the case of the Note Purchasers, the
Purchaser Note and Pledge Agreement to be delivered by such Purchaser) to
which such Purchaser is or will be a party each constitutes a valid and
binding obligation of such Purchaser, enforceable in accordance with its
terms, except as (i) the enforceability thereof may be limited by
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance
or other laws of general applicability affecting the enforcement of
creditors' or secured parties' rights or debtors' obligations generally
and (ii) the availability of specific performance or other equitable
remedies may be limited by equitable principles of general applicability
(whether such matter is considered in a proceeding at law or in equity).
The (x) execution and delivery by such Purchaser of this Agreement, the
Registration Rights Agreement and all other agreements contemplated hereby
(including without limitation in the case of the Note Purchasers, the
Purchaser Note and Pledge Agreement to be delivered by such Purchaser) to
which such Purchaser is or will be a party, and (y) fulfillment of and
compliance with the respective terms hereof and thereof by such Purchaser,
do not and shall not, except in respect of clause (y) above, for filings
and other actions to be performed upon the occurrence of certain future
events, as contemplated by the Registration Rights Agreement, (i) conflict
with or result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) result in the creation of any lien,
security interest, charge or encumbrance upon such Purchaser's assets
pursuant to, (iv) give any third party the right to modify, terminate or
accelerate any obligation under, (v) result in a violation of, or (vi)
require any authorization, consent, approval, exemption or other action by
or notice to any court or administrative or governmental body pursuant to,
any law, statute, rule or regulation to which such Purchaser is subject,
or any contract, agreement, instrument, order, judgment or decree to which
such Purchaser is subject, which such authorization, consent, approval,
exemption, action or notice has not been obtained.
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(c) Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement
binding upon such Purchaser. Such Purchaser shall pay, and hold each of
ATS and the other Purchasers harmless against, any liability, loss or
expense (including, without limitation, reasonable attorneys' fees and
out-of-pocket expenses) arising in connection with any such claim.
(d) ARS Common Stock. All shares of ARS Common Stock pledged by
each Note Purchaser pursuant to the provisions of such Purchaser's Pledge
Agreement, have, to such Purchaser's knowledge, been duly authorized,
validly issued, fully paid and nonassessable; such Purchaser owns such
shares free and clear of all liens and encumbrances, other than those
created by such Pledge Agreement.
(e) Governmental Consent, etc. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental
authority is required in connection with the execution, delivery and
performance by such Purchaser of this Agreement or the other agreements
contemplated hereby, or the consummation by such Purchaser of any other
transactions contemplated hereby or thereby, except as expressly
contemplated herein or therein or in the exhibits hereto or thereto.
(f) Investment Representation. Such Purchaser is an "accredited
investor" as such term is defined in Rule 501 of Regulation D ("Regulation
D") promulgated under the Securities Act. The Subject Shares and, if
applicable, the Exchanged Shares to be acquired by such Purchaser are
being acquired solely for the account of such Purchaser for purposes of
investment and not with a view to the sale, transfer or other distribution
thereof, as those terms are used in the Securities Act and the rules and
regulations promulgated thereunder; provided, however, that nothing
contained herein shall prevent such Purchaser and subsequent holders of
Subject Shares or, if applicable, Exchanged Shares from transferring such
securities in compliance with the applicable provisions of the Securities
Act (including without limitation Rule 144 promulgated thereunder) and
applicable state securities laws. Each Purchaser, severally and not
jointly, covenants and agrees that he or it will not sell, assign,
transfer or otherwise dispose of any of the Subject Share or, if
applicable, Exchanged Shares to be acquired by such Purchaser in violation
of the Securities Act or applicable state securities laws. Each
certificate for Subject Shares and Exchanged Shares shall be imprinted
with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE CONDITIONS SPECIFIED IN THE STOCK PURCHASE
AGREEMENT, DATED AS OF JANUARY 8, 1998, BETWEEN THE ISSUER
("ATS") AND THE PURCHASERS NAMED THEREIN, AND ATS RESERVES THE
RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A
COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY ATS TO THE HOLDER
HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE."
SECTION 6. Miscellaneous.
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(a) Termination. This Agreement may be terminated with the mutual consent
of the Purchasers and ATS.
(b) Amendment. This Agreement may be amended, from time to time, by the
parties hereto at any time prior to the Closing Date but only by an instrument
in writing signed by the parties hereto or their respective successors or
assigns.
(c) Waiver. At any time prior to the Closing Date, the parties may,
either generally or in a particular instance and either retrospectively or
prospectively, extend the time for the performance of any of the obligations or
other acts of the other, and waive compliance by the other with any of the
agreements, covenants, conditions or other provisions contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
(d) Expenses. ATS agrees to pay the reasonable out-of-pocket expenses of
the Purchasers incident to the negotiation, preparation, performance and
enforcement of this Agreement (including all reasonable fees and expenses of
Purchasers' counsel (not to exceed in the aggregate $20,000), accountants and
other consultants, advisors and representatives for all activities of such
persons undertaken pursuant to this Agreement).
(e) Notices. All notices and other communications which by any provision
of this Agreement are required or permitted to be given shall be given in
writing and shall be (a) mailed by first-class or express mail, postage prepaid,
or by recognized courier service, (b) sent by telecopy or other form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid, or by recognized courier service) written confirmation at substantially
the same time as such rapid transmission, or (c) personally delivered to the
receiving party (which if, other than an individual, shall be an officer or
other responsible party of the receiving party). All such notices and
communications shall be mailed, sent or delivered as follows:
If to ATS: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇; and
If to any of the Purchasers, at the address set forth in the stock records
of ATS;
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
(f) Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that in the event the other party should refuse to perform
any of its obligations under this Agreement, the remedy at law would be
inadequate and agrees that for breach of such provisions, each party shall, in
addition to such other remedies as may be available to it at law or in equity,
be entitled to injunctive relief and to enforce its rights by an action for
specific performance to the extent permitted by applicable law. Each party
hereby waives any requirement for security or the posting of any bond or other
surety in connection with any
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temporary or permanent award of injunctive, mandatory or other equitable relief.
Nothing herein contained shall be construed as prohibiting each party from
pursuing any other remedies available to it under applicable law or pursuant to
the provisions of this Agreement for such breach or threatened breach, including
without limitation the recovery of damages.
(g) Survival of Representations, Warranties, Covenants and Agreements.
All of the representations, warranties, covenants and agreements set forth in
this Agreement shall survive the Closing.
(h) Severability. If any term or provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case. Notwithstanding the foregoing, in the event
of any such determination the effect of which is to affect materially and
adversely either the Purchasers or ATS, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the intent and purpose of this Agreement
is fulfilled and consummated to the maximum extent possible.
(i) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument, binding upon all of the parties. In
pleading or proving any provision of this Agreement, it shall not be necessary
to produce more than one of such counterparts.
(j) Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(k) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in accordance
with, the applicable laws of the United States of America and the laws of The
Commonwealth of Massachusetts applicable to contracts made and performed in such
State and, in any event, without giving effect to any choice or conflict of laws
provision or rule that would cause the application of domestic substantive laws
of any other jurisdiction, except to the extent the corporate laws of the State
of Delaware are applicable. Anything in this Agreement to the contrary
notwithstanding, in the event of any dispute between the parties which results
in a legal action, litigation or other proceeding, the prevailing party shall be
entitled to receive from the non-prevailing party reimbursement for reasonable
legal fees and expenses incurred by such prevailing party in such legal action,
litigation or other proceeding.
(l) Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such other
agreements, instruments or other documents and other assurances, as the other
party or its counsel reasonably deems necessary or desirable in order to carry
out the terms and conditions of this Agreement and the transactions contemplated
hereby or to facilitate the enjoyment of any of the rights created hereby or to
be created hereunder.
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(m) Entire Agreement. This Agreement (together with the other agreements,
instruments and other documents delivered in connection herewith) constitutes
the entire agreement of the parties with respect to the subject matter hereof
and supersedes all prior agreements, arrangements, covenants, promises,
conditions, understandings, inducements, representations and negotiations,
expressed or implied, oral or written, among the parties, with respect to the
subject matter hereof and supersedes all prior agreements, arrangements,
covenants, promises, conditions, undertakings, inducements, representations,
warranties and negotiations, expressed or implied, oral or written, between the
parties, with respect to the subject matter hereof. Each of the parties is a
sophisticated investor or legal entity that was advised by experienced counsel
and, to the extent it deemed necessary, other advisors in connection with this
Agreement. Each of the parties hereby acknowledges that (i) none of the parties
has relied or will rely in respect of this Agreement or the transactions
contemplated hereby upon any document or written or oral information previously
furnished to or discovered by it or its representatives, other than this
Agreement (or such of the foregoing as are delivered at the Closing, (ii) there
are no covenants or agreements by or on behalf of any party or any of its
respective affiliates or representatives other than those expressly set forth in
this Agreement and the other agreements, instruments and other documents
delivered in connection herewith, and (iii) the parties' respective rights and
obligations with respect to this Agreement and the events giving rise thereto
will be solely as set forth in this Agreement and such other agreements,
instruments and other documents. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, EACH PARTY HERETO AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT AND, IN THE CASE OF THE NOTE PURCHASERS,
THE PLEDGE AGREEMENT, NONE OF THE PARTIES MAKES ON BEHALF OF ITSELF AND ITS
DIRECTORS, OFFICERS, STOCKHOLDERS, PARTNERS, TRUSTEES, BENEFICIARIES AND OTHER
AFFILIATES ANY OTHER REPRESENTATIONS OR WARRANTIES, AND EACH HEREBY DISCLAIMS ON
BEHALF OF ITSELF AND ITS OFFICERS, DIRECTORS, STOCKHOLDERS, PARTNERS, TRUSTEES,
BENEFICIARIES AND OTHER AFFILIATES ANY OTHER REPRESENTATIONS OR WARRANTIES MADE
BY ITSELF OR ANY OF ITS OFFICERS, DIRECTORS, STOCKHOLDERS, PARTNERS, TRUSTEES,
BENEFICIARIES, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER
REPRESENTATIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE
TO THE OTHER OR THE OTHER'S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER
INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.
(n) Assignment. This Agreement shall not be assignable by any party and
any such assignment shall be null and void, except that it shall inure to the
benefit of and be binding upon any successor to each party by operation of law,
including by way of merger, consolidation or sale of all or substantially all of
its assets, and, in the case of the Purchasers, their respective executors,
trustees, and heirs, and any person to whom any of them shall have transferred
any of the Subject Shares or the Exchanged Shares not in violation of this
Agreement. Notwithstanding the foregoing, ATS may assign its rights and remedies
hereunder to any bank or other financial institution which has loaned funds or
otherwise extended credit to it.
(o) Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties and their permitted successors and assigns,
and nothing in this Agreement, express or implied, is intended to or shall
confer upon any person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement, except as otherwise provided in Section
6(n).
(p) Certain Definitions. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa, and the reference to
any gender shall be deemed to include all genders. References to "hereof,"
"herein" or similar terms are intended to refer to the Agreement as a whole and
not
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a particular section, and references to "this Section" are intended to refer to
the entire section or article and not a particular subsection thereof.
(q) Mutual Drafting. This Agreement is the result of the joint efforts of
ATS and the Purchasers, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there shall be no
construction against either party based on any presumption of that party's
involvement in the drafting thereof. Each of the parties is a sophisticated
legal entity or individual that was advised by experienced counsel and, to the
extent it deemed necessary, other advisors in connection with this Agreement.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, each of the parties hereto had caused this Agreement
to be duly executed and delivered as of the day and year first above written.
American Tower Systems Corporation
By:_________________________________
Name:
Title:
____________________________________
▇▇▇▇ ▇. Box
____________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chase Equity Associates, L.P.
By Chase Capital Partners, General Partner
____________________________________
Name:
Title:
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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_____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Bessemer Trust Company,
Trustees of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
By:__________________________________
Name:
Title:
Bessemer Trust Company, Trustee of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Trust
By:__________________________________
Name:
Title:
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation
By:__________________________________
Name:
Title:
_____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Bessemer Trust Company, Trustee of
Alden ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 35 Trust
By:__________________________________
Name:
Title:
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