EXHIBIT 1.1
S&C Draft of January 18, 2001
AMERICAN TOWER CORPORATION
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES
CLASS A COMMON STOCK AND WARRANTS
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UNDERWRITING AGREEMENT
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January 18, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. American Tower Corporation, a Delaware corporation
("COMPANY"), proposes to issue and sell from time to time certain of its
unsecured debt securities, preferred stock, depositary shares, Class A Common
Stock ("COMMON STOCK") and warrants and certain stockholders of the Company
("SELLING STOCKHOLDERS") may sell Common Stock registered under the registration
statements referred to in Section 2(a) (collectively, "REGISTERED SECURITIES").
The Registered Securities constituting senior debt securities will be issued
under the Indenture identified in the Terms Agreement referred to in Section 3
("SENIOR INDENTURE"), in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices and other
terms. The Registered Securities constituting subordinated debt securities will
be issued under the Indenture identified in the Terms Agreement referred to in
Section 3 (the "SUBORDINATED INDENTURE", and together with the Senior Indenture,
the "INDENTURES" or, each, an "INDENTURE"), in one or more series, which series
may vary as to interest rates, maturities, redemption provisions, selling prices
and other terms. The Registered Securities constituting preferred stock may be
issued in one or more series, which series may vary as to dividend rates,
redemption provisions, selling prices and other terms. The Registered
Securities constituting depositary shares will be issued by the Depositary
identified in the Terms Agreement referred to in Section 3 (the "DEPOSITARY")
under the deposit agreement identified in the Terms Agreement referred to in
Section 3 ("DEPOSIT AGREEMENT"), in one or more series, each representing an
interest in shares of the Company's preferred stock. The Registered Securities
constituting warrants will be issued under a warrant agreement identified in the
Terms Agreement referred to in Section 3 ("WARRANT AGREEMENT"), between the
Company and the Warrant Agent identified in the Terms Agreement referred to in
Section 3 (the "WARRANT AGENT"), in one or more series, which series may vary as
to securities or other property purchasable, expiration dates, exercise dates,
selling prices, exercise prices and other terms. Particular series or offerings
of Registered Securities will be sold pursuant to a Terms Agreement referred to
in Section 3, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES"; provided, however, that if the Terms
Agreement provides for an over-allotment option ("OVER-ALLOTMENT OPTION"), then
the Registered Securities involved in any such offering and to be purchased by
the Underwriters are hereinafter referred to as the "FIRM OFFERED SECURITIES"
and any Registered Securities involved in any such offering which may be
purchased pursuant to the Over-Allotment Option are hereinafter referred to as
the "OPTIONAL OFFERED SECURITIES"; provided, further, however, that the Firm
Offered Securities and the Optional Offered Securities are herein collectively
referred to as the "OFFERED SECURITIES". The firm
or firms which agree to purchase the Offered Securities are hereinafter referred
to as the "UNDERWRITERS" of such securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement
referred to in Section 3 are hereinafter referred to as the "REPRESENTATIVES";
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "Representatives", as used in this
Agreement (other than in Sections 2(b), 5(d) and 6 and the second sentence of
Section 3), shall mean the Underwriters.
Subsidiaries of the Company have entered into a Credit Agreement, dated as
of January 6, 2000, among Verestar Inc., American Towers, Inc. and American
Tower L.P., respectively, and Toronto Dominion (Texas) Inc. as Administrative
Agent, and the other lenders under such agreement (as heretofore amended, the
"CREDIT AGREEMENT").
2. Representations and Warranties of the Company and the Selling
Stockholders, if any. (a) The Company, as of the date of each Terms Agreement
referred to in Section 3, represents and warrants to, and agrees with, each
Underwriter that:
(i) A registration statement (No. 333-37988), relating to the Registered
Securities to be issued and sold by the Company (the "COMPANY REGISTRATION
STATEMENT"), and, if so indicated in the Terms Agreement, a registration
statement, relating to the Registered Securities to be sold by the Selling
Stockholders, if any (the "SELLING STOCKHOLDER REGISTRATION STATEMENT"),
including a prospectus, which relates to the Registered Securities under
the Company Registration Statement and the Registered Securities under the
Selling Stockholder Registration Statement pursuant to Rule 429 under the
Securities Act of 1933 ("ACT"), have been filed with the Securities and
Exchange Commission ("COMMISSION") and have become effective. The Company
Registration Statement, as amended at the time of any Terms Agreement
referred to in Section 3, and the Selling Stockholder Registration
Statement, as may be amended at the time of any Terms Agreement referred to
in Section 3, are hereinafter collectively referred to as the "REGISTRATION
STATEMENT", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities, preferred stock,
depositary shares or warrants) and the terms of the offering of the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(B)") under the Act, including all
material incorporated by reference therein, is hereinafter referred to as
the "PROSPECTUS". No document has been or will be prepared or distributed
in reliance on Rule 434 under the Act.
(ii) On the effective date of the registration statements relating to
the Registered Securities, such registration statements conformed, to the
extent applicable in the case of the Selling Stockholder Registration
Statement, in all material respects to the requirements of the Act, the
Securities Exchange Act of 1934 ("EXCHANGE ACT"), the Trust Indenture Act
of 1939 ("TRUST INDENTURE ACT") and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in Section
3, the Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations, and the Registration Statement 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 the Prospectus 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,
in the light of the circumstances under which they were made, not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
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(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(iv) Each subsidiary of the Company has been duly incorporated (or
formed, as the case may be) and is an existing corporation (or limited
partnership or limited liability company, as the case may be) in good
standing under the laws of the jurisdiction of its incorporation or
formation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where failure so to qualify and be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as a
whole ("MATERIAL ADVERSE EFFECT"); all of the issued and outstanding
capital stock (or partnership or other equity interests) of each subsidiary
of the Company has been duly authorized and validly issued and is fully
paid and, except for any general partnership interest, nonassessable; and,
except for the pledge pursuant to the Credit Agreement, the capital stock
(or partnership or other equity interests) of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) If the Offered Securities are debt securities: the applicable
Indenture has been duly authorized by the Company and has been duly
qualified under the Trust Indenture Act; the Offered Securities have been
duly authorized; and when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined below) or
pursuant to Delayed Delivery Contracts (as hereinafter defined), such
Indenture will have been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery of the Indenture and
authentication of the Offered Securities by the applicable trustee
identified in the Terms Agreement (the "TRUSTEE"), such Offered Securities
will have been duly executed, issued and delivered by the Company and will
conform to the description thereof contained in the Prospectus and such
Indenture and such Offered Securities will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(vi) If the Offered Securities are preferred stock: the Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date, such Offered Securities will have been validly issued, fully
paid and nonassessable and will conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities.
(vii) If the Offered Securities are depositary shares: the Deposit
Agreement has been duly authorized by the Company; the Offered Securities
and the shares of the Company's preferred stock represented by the Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date, the Offered Securities will have been validly issued and
delivered and such shares of the Company's preferred stock will have been
validly issued, fully paid and nonassessable and each will conform to the
description thereof contained in the Prospectus; when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date (as defined below) or pursuant to Delayed Delivery
Contracts, the Deposit Agreement will have been duly executed and delivered
by the Company; the deposit by the Company of the shares of the Company's
preferred
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stock represented by the Offered Securities in accordance with the Deposit
Agreement has been duly authorized by the Company and, assuming due
authorization, execution and delivery of the Deposit Agreement by the
Depositary, each Offered Security will represent a legal and valid
fractional interest in shares of the Company's preferred stock as described
in the Prospectus; assuming due execution and delivery of the depositary
receipts evidencing the Offered Securities by the Depositary pursuant to
the Deposit Agreement, such depositary receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit Agreement; and
the stockholders of the Company have no preemptive rights with respect to
the Offered Securities or the shares of the Company's preferred stock
represented thereby.
(viii) If the Offered Securities are warrants: the Warrant Agreement has
been duly authorized by the Company; the Offered Securities and the
securities for which the Offered Securities are exercisable ("WARRANT
SECURITIES") have been duly authorized (including, in the case of Warrant
Securities constituting depositary shares, the shares of the Company's
preferred stock represented by such depositary shares); when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date or pursuant to Delayed Delivery Contracts, the Warrant
Agreement will have been duly executed and delivered by the Company, such
Offered Securities will have been duly executed, authenticated, issued and
delivered (as the case may be) by the Company and will conform to the
description thereof contained in the Prospectus and the Warrant Agreement
and such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and upon
exercise of the Offered Securities in accordance with the terms of the
Warrant Agreement and assuming due authorization, execution and delivery of
the Warrant Agreement by the Warrant Agent, (i) in the case of Warrant
Securities constituting debt securities, the applicable Indenture will have
been duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery of the Indenture and
authentication of the Offered Securities by the Trustee, such Warrant
Securities will have been duly authorized, executed, issued and delivered
by the Company and will conform to the description thereof contained in the
Prospectus and such Indenture and such Warrant Securities will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; (ii) in the case of Warrant Securities constituting of
preferred stock, the Warrant Securities will have been validly issued,
fully paid and nonassessable and will conform to the description thereof
contained in the Prospectus, and the stockholders of the Company will have
no preemptive rights with respect to the Warrant Securities; (iii) in the
case of Warrant Securities constituting depositary shares, (A) the Warrant
Securities will have been validly issued and delivered and the shares of
the Company's preferred stock represented by such Warrant Securities will
have been validly issued, fully paid and nonassessable and each will
conform to the description thereof contained in the Prospectus, (B) the
Deposit Agreement will have been duly authorized, executed and delivered by
the Company and the deposit by the Company of the shares of the Company's
preferred stock represented by the Warrant Securities in accordance with
the Deposit Agreement will have been duly authorized by the Company, (C)
assuming due authorization, execution and delivery of the Deposit Agreement
by the Depositary, each Warrant Security will represent a legal and valid
fractional interest in shares of the Company's preferred stock as described
in the Prospectus, and (D) assuming due execution and delivery of the
depositary receipts evidencing the Warrant Securities by the Depositary
pursuant to the Deposit Agreement, such depositary receipts will entitle
the holders thereof to the benefits provided therein and in the Deposit
Agreement, and the stockholders of the Company will have no preemptive
rights with respect to the Warrant Securities or the shares of the
Company's preferred stock represented thereby; and (iv) in the case of
Warrant Securities constituting Common Stock, the Warrant Securities and
all outstanding shares of capital stock of the Company will have been duly
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authorized, validly issued, fully paid and nonassessable and will conform
to the description thereof contained in the Prospectus, and the
stockholders of the Company have no preemptive rights with respect to the
Warrant Securities.
(ix) If the Offered Securities are Common Stock: the Offered Securities
and all other outstanding shares of capital stock of the Company have been
duly authorized; all outstanding shares of capital stock of the Company
(including the Offered Securities, if any, being sold by any Selling
Stockholders) are, and, when the Offered Securities have been delivered and
paid for in accordance with the Terms Agreement on the Closing Date, such
Offered Securities will have been, validly issued, fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights
with respect to the Offered Securities.
(x) If the Offered Securities are convertible into Common Stock: when
the Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date, such Offered Securities will be convertible
into Common Stock of the Company in accordance with their terms (if the
Offered Securities are preferred stock) or the applicable Indenture (if the
Offered Securities are debt securities); the shares of Common Stock
initially issuable upon conversion of such Offered Securities have been
duly authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Common Stock.
(xi) If the Offered Securities are Common Stock or warrants to purchase
Common Stock or are convertible into Common Stock: there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
the offering of the Offered Securities.
(xii) If the Offered Securities are Common Stock or warrants to purchase
Common Stock or are convertible into Common Stock: except as disclosed in
the Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right with
respect to any outstanding securities of the Company owned or to be owned
by such person to require the Company to include such securities in the
securities registered pursuant to the Registration Statement.
(xiii) If the Offered Securities constitute Common Stock or are warrants
to purchase Common Stock or are convertible into Common Stock: the
outstanding shares of Common Stock are listed on the New York Stock
Exchange (the "STOCK EXCHANGE") and the Offered Securities (if the Offered
Securities are Common Stock) or the Common Stock for which the Offered
Securities are exercisable (if the Offered Securities are warrants to
purchase Common Stock) or the Common Stock into which the Offered
Securities are convertible (if they are convertible) will have been
approved for listing on the Stock Exchange, subject to notice of issuance,
on or before the Closing Date. If the Offered Securities are debt
securities, preferred stock, depositary shares or warrants, they have been
approved for listing on the stock exchange, if any, indicated in the Terms
Agreement, subject to notice of issuance.
(xiv) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement), the applicable Indenture (if
the Offered Securities are debt securities), the Deposit Agreement (if the
Offered Securities are
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depositary shares) or the Warrant Agreement (if the Offered Securities are
warrants) in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained and made under
the Act and, if the Offered Securities are debt securities, the Trust
Indenture Act and such as may be required under state securities laws.
(xv) The execution, delivery and performance of the applicable Indenture
(if the Offered Securities are debt securities), the Deposit Agreement (if
the Offered Securities are depositary shares), the Warrant Agreement (if
the Offered Securities are warrants), the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Offered Securities and, if the Offered Securities
are debt securities, preferred stock, depositary shares or warrants,
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, the Credit Agreement, or any agreement or instrument to
which the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the 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, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement).
(xvi) The Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are debt securities, preferred stock,
depositary shares or warrants, any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
(xvii) Except as disclosed in the Prospectus and except as would not
have a Material Adverse Effect, the Company and its subsidiaries have good
and marketable title to all real properties and all other properties and
assets owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would have a Material Adverse Effect.
(xviii) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xix) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xx) Except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"ENVIRONMENTAL LAWS"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or
is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would
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individually or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to such
a claim.
(xxi) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the applicable Indenture (if the Offered Securities are debt
securities), the Deposit Agreement (if the Offered Securities are
depositary shares), the Warrant Agreement (if the Offered Securities are
warrants), the Terms Agreement (including the provisions of this Agreement)
or any Delayed Delivery Contracts or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions, suits
or proceedings are threatened or, to the Company's knowledge, contemplated.
(xxii) The financial statements included or incorporated by reference in
the Registration Statement and Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis; any schedules included in the Registration Statement
present fairly the information required to be stated therein; and if pro
forma financial statements are included in the Registration Statement and
Prospectus: the assumptions used in preparing the pro forma financial
statements included in the Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(xxiii) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(xxiv) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder, if any, as of the date of each Terms
Agreement referred to in Section 3, severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder and full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by such
Selling Stockholder on the Closing Date; and upon the delivery of and
payment for the Offered Securities on such Closing Date, the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder.
(ii) All information furnished, or to be furnished, in writing to the
Company by such Selling Stockholder regarding the Selling Stockholder
specifically for use in the Registration Statement is as of the date of any
Terms Agreement, and will be on the Closing Date, true and correct in all
material respects and does not on the date of the Terms Agreement, and will
not on
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the Closing Date, contain any untrue statement of a material fact or omit
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) The execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under this
Agreement, the Custody Agreement hereinafter referred to and the Power of
Attorney appointing certain individuals as such Selling Stockholder's
attorneys-in-fact to the extent set forth therein (the "POWER OF ATTORNEY")
will not result in a breach or violation of any of the terms or provisions
of, or constitute a default under, the certificate of incorporation or
bylaws or agreement of limited partnership or other constituent document of
such Selling Stockholder (if such Selling Stockholder is a corporation or
limited partnership or other entity) or any statute, rule, regulation or
order of any governmental agency or body or any court having jurisdiction
over such Selling Stockholder or any of its properties, or any agreement or
instrument to which such Selling Stockholder is a party or by which it is
bound or to which any of its properties is subject, or the constituent
documents, if any, of such Selling Stockholder.
(iv) No consent, approval, authorization, order or waiver of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by such Selling Stockholder for the sale of the Offered
Securities to be sold by such Selling Stockholder or the performance by
such Selling Stockholder of its obligations under the Terms Agreement or
the Power of Attorney or Custody Agreement of such Selling Stockholder,
except such as have been obtained and made under the Act and such as may be
required under state securities laws.
(v) The Terms Agreement (including the provisions of this Agreement) has
been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder and the Power of Attorney and the Custody Agreement
have been duly authorized, executed and delivered by such Selling
Stockholder and are its valid and binding agreements (subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles).
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications, which may be in the form
of Annex I, II or III or in such other form as the parties may agree ("TERMS
AGREEMENT") at the time the Company and the Selling Stockholders, if any,
determine to sell the Offered Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount or number of Offered
Securities to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters, the name of each Selling Stockholder, if any, the number of
shares to be sold by each Selling Stockholder, if any, and (if the Offered
Securities are debt securities, preferred stock, depositary shares or warrants)
the terms of the Offered Securities not already specified (in the applicable
Indenture, in the case of Offered Securities that are debt securities, in the
Deposit Agreement, in the case of Offered Securities that are depositary shares,
or in the Warrant Agreement, in the case of Offered Securities that are
warrants), including, but not limited to, interest rate (if debt securities or
debt warrants), dividend rate (if preferred stock, preferred stock warrants or
depositary shares), maturity (if debt securities or debt warrants), any
redemption provisions and any sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts. The Terms Agreement will specify any other details of the
terms of offering that should be reflected in the prospectus supplement relating
to the offering of the Offered Securities.
On the basis of the representations, warranties and agreements set forth in
the Terms Agreement (including the provisions of this Agreement), but subject to
the terms and conditions set forth in the Terms Agreement (including the
provisions of this Agreement), the Company and each Selling Stockholder, if any,
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will agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter will agree, severally and not jointly, to purchase from the Company
and each Selling Stockholder, if any, at the purchase price specified in the
Terms Agreement, that number of Offered Securities (or Firm Offered Securities
if there is an Over-Allotment Option) specified or determined in accordance with
the provisions of the Terms Agreement. In addition, if the Terms Agreement
provides for an Over-Allotment Option, upon written notice from the Lead
Underwriter (as defined below) given to the Company from time to time not more
than thirty days subsequent to the date of the Terms Agreement, the Underwriters
may, severally and not jointly, purchase all or less than all of the Optional
Offered Securities, and the Company and the Selling Stockholders, if any, will
agree, severally and not jointly, to sell to the Underwriters, at the purchase
price per share to be paid for the Firm Offered Securities, that number of
Optional Offered Securities specified or determined in accordance with the
provisions of the Terms Agreement; provided, however, that the Over-Allotment
Option may be exercised from time to time and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by Lead
Underwriter to the Company.
The Company and the Selling Stockholders, if any, or the Custodian (as
defined below), if there is a custody arrangement with the Selling Stockholders,
will deliver the Offered Securities (or Firm Offered Securities if there is an
Over-Allotment Option) to the Representatives for the accounts of the
Underwriters, against payment of the purchase price in Federal (same day) Funds
by wire transfer in U.S. Dollars to an account at a bank acceptable to the Lead
Underwriter drawn to the order of the Company, in the case of the Offered
Securities (or Firm Offered Securities if there is an Over-Allotment Option)
sold by the Company, and to the Selling Stockholders, if any, or the Custodian,
if there is a custody arrangement with the Selling Stockholders, in the case of
the Offered Securities (or Firm Offered Securities if there is an Over-Allotment
Option) sold by the Selling Stockholders, at the place of delivery and payment
specified in the Terms Agreement and at the time and date of delivery and
payment specified in the Terms Agreement (such time and date, or such other time
not later than seven full business days thereafter as the Underwriter first
named in the Terms Agreement (the "LEAD UNDERWRITER") and the Company agree as
the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "CLOSING DATE" or "FIRST CLOSING DATE" if the Terms Agreement
provides for an Over-Allotment Option). For purposes of Rule 15c6-1 under the
Exchange Act, the Closing Date (or First Closing Date if there is an Over-
Allotment Option) (if later than the otherwise applicable settlement date) shall
be the date for payment of funds and delivery of securities for all the Offered
Securities (or Firm Offered Securities if there is an Over-Allotment Option)
sold pursuant to the offering, other than Contract Securities (as defined below)
for which payment of funds and delivery of securities shall be as hereinafter
provided. It is understood that the Underwriters propose to offer the Offered
Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for an Over-Allotment Option, each time for
the delivery of and payment for the Optional Offered Securities, being herein
referred to as an "OPTIONAL CLOSING DATE", which may be the First Closing Date
(the First Closing Date and each Optional Closing Date, if any, being sometimes
referred to as a "CLOSING DATE"), shall be determined by the Lead Underwriter
but shall not be later than seven full business days after written notice of
election to purchase Optional Offered Securities is given. The Company and the
Selling Stockholders, if any, will deliver the Optional Offered Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the Underwriters, against payment of the purchase price therefor in Federal
(same day) Funds by wire transfer in U.S. Dollars to an account at a bank
acceptable to the Lead Underwriter drawn to the order of the Company, in the
case of the Optional Offered Securities sold by the Company, and to the Selling
Stockholders, if any, or the Custodian, if there is a custody arrangement with
the Selling Stockholders, in the case of the Optional Offered Securities sold by
the Selling Stockholders, at the place of delivery and payment specified in the
Terms Agreement.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of ▇▇▇▇▇ ▇▇ attached hereto ("DELAYED DELIVERY
CONTRACTS") with such changes therein as the Company may authorize or approve.
Delayed Delivery
-9-
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. On the Closing Date the Company will
pay, as compensation, to the Representatives for the accounts of the
Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount (if debt securities) or number of shares (if preferred stock,
Common Stock or depositary shares) or warrants (if warrants) of Offered
Securities to be sold pursuant to Delayed Delivery Contracts ("CONTRACT
SECURITIES"). The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts. If the Company
executes and delivers Delayed Delivery Contracts, the Contract Securities will
be deducted from the Offered Securities to be purchased by the several
Underwriters and the aggregate principal amount (if debt securities) or number
of shares (if preferred stock, Common Stock or depositary shares) or warrants
(if warrants) to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount (if debt securities) or number of shares (if
preferred stock, Common Stock or depositary shares) or warrants (if warrants)
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Lead Underwriter determines that such reduction shall be
otherwise than pro rata and so advises the Company. The Company will advise the
Lead Underwriter not later than the business day prior to the Closing Date of
the principal amount (if debt securities) or number of shares (if preferred
stock, Common Stock or depositary shares) or warrants (if warrants) constituting
Contract Securities.
If the Offered Securities are Common Stock, there are Selling Stockholders
and there is a custody arrangement with the Selling Stockholders, as of the date
of each Terms Agreement, certificates in negotiable form for any Common Stock of
the Company to be sold by such Selling Stockholders shall be placed in custody,
for delivery under the Terms Agreement, under custody agreements (the "CUSTODY
AGREEMENTS") made with custodian identified in the Terms Agreement (the
"CUSTODIAN"). Each Selling Stockholder agrees that the shares represented by
the certificates held in custody for the Selling Stockholders under the Custody
Agreements are subject to the interests of the Underwriters, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable except as provided therein and in the Power of Attorney of
such Selling Stockholder, and that the obligations of the Selling Stockholders
under any Terms Agreement shall not be terminated by operation of law, whether
by the death of any individual Selling Stockholder or the occurrence of any
other event, or in the case of a trust, by the death of any trustee or trustees
or the termination of such trust, or in the case of a corporation or partnership
or other entity, by the dissolution or liquidation of such corporation or
partnership or other entity, or the occurrence of any other event. If any
individual Selling Stockholder or any such trustee or trustees should die, or if
any such corporation or partnership should be dissolved or liquidated or if any
other such event should occur, or if any of such trusts should terminate, before
the delivery of the Offered Securities under any Terms Agreement, certificates
for such Offered Securities shall be delivered by the Custodian in accordance
with the terms and conditions of the Terms Agreement and the Custody Agreements
as if such death, dissolution, liquidation or other event or termination had not
occurred, regardless of whether or not the Custodian shall have received notice
of such death, dissolution, liquidation or other event or termination.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "GLOBAL SECURITIES") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Lead Underwriter, in each case drawn to
the order of the Company at the place of payment specified in the Terms
Agreement on the Closing Date, against delivery to the applicable Trustee as
custodian for DTC of the Global Securities representing all of the Offered
Securities.
-10-
4. Certain Agreements of the Company and the Selling Stockholders, if any.
The Company agrees with the several Underwriters and the Selling Stockholders,
if any, that it will furnish to counsel for the Underwriters, one signed copy of
the Company Registration Statement and the Selling Stockholder Registration
Statement, each relating to the Registered Securities, including all exhibits,
in the form it became effective and of all amendments thereto and that, in
connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to
and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by
the Lead Underwriter, subparagraph (5)) not later than the second business day
following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and will not
effect such amendment or supplement without the Lead Underwriter's consent. The
Company will also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or of any part
thereof and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify the Lead Underwriter of such
event and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the Lead
Underwriter's consent to, nor the Underwriters' delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) As soon as practicable, but not later than 16 months, after the date of
each Terms Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the latest of (i) the respective effective date of the
registration statements relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such Terms Agreement and
(iii) the date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement and, so long as
delivery of a Prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or dealer,
the Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Lead Underwriter
reasonably requests. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and (if the Offered Securities are debt securities,
preferred stock, depositary shares or warrants) the determination of their
eligibility for investment under the laws of such jurisdictions as the Lead
Underwriter designates and will continue such qualifications in effect so long
as required for the distribution; provided, that the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process or to subject itself to taxation generally in any
jurisdiction.
-11-
(g) During the period of five years after the date of any Terms Agreement,
the Company will furnish to the Representatives and, upon request, to each of
the other Underwriters, if any, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from time
to time, such other information concerning the Company as the Lead Underwriter
may reasonably request.
(h) The Company and each Selling Stockholder, if any, will pay all expenses
incidental to the performance of their obligations under the Terms Agreement
(including the provisions of this Agreement), the Indentures, the Deposit
Agreement and the Warrant Agreement, including (i) the fees and expenses of the
Trustees, Depositary, Warrant Agent, registrar and transfer agent of the Common
Stock and their professional advisers; (ii) payment or reimbursement of the
Underwriters (to the extent incurred by them) for any filing fees or other
expenses (including fees and disbursements of counsel) incurred in connection
with qualification of the Registered Securities for sale (if the Offered
Securities are debt securities, preferred stock, depositary shares or warrants
(other than warrants to purchase Common Stock)), any determination of their
eligibility for investment under the laws of such jurisdictions as the Lead
Underwriter may designate and the printing of memoranda relating thereto; (iii)
all expenses in connection with the execution, issue, authentication, packaging
and initial delivery of the Offered Securities, the preparation and printing of
the Terms Agreement (including this Agreement), the Indentures, the Deposit
Agreement, the Warrant Agreement, the Registration Statement and amendments and
supplements thereto, and any other document relating to the issuance, offer,
sale and delivery of the Offered Securities; (iv) the cost of qualifying the
Offered Securities, to the extent applicable, for trading on the Stock Exchange
or other national securities exchange and any expenses incidental thereto; (v)
the cost of any advertising approved by the Company in connection with the issue
of the Offered Securities; (vi) any fees charged by investment rating agencies
for the rating of the Offered Securities (if they are debt securities, preferred
stock, depositary shares or warrants (other than warrants to purchase Common
Stock)); (vii) any applicable filing fee incident to, and the reasonable fees
and disbursements of counsel for the Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. of the Registered
Securities; (viii) any travel expenses of the Company's officers and employees
and any other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of Registered Securities; and (ix) expenses
incurred in distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or supplements to the
Prospectus to the Underwriters; provided, however, the Selling Stockholders, if
any, shall be responsible for the payment of any transfer taxes on the sale by
such Selling Stockholders of the Offered Securities to the Underwriters.
(i) If the Offered Securities are debt securities, preferred stock,
depositary shares or warrants (other than warrants to purchase Common Stock),
the Company will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration statement
under the Act relating to any indebtedness issued or guaranteed by the Company
(if the Offered Securities are debt securities or warrants to purchase debt
securities) or any series of preferred stock or depositary shares representing
preferred stock issued or guaranteed by the Company (if the Offered Securities
are preferred stock, depositary shares or warrants to purchase preferred stock
or depositary shares), or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written consent of
the Lead Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement (the "BLACKOUT PERIOD").
(j) If the Offered Securities are Common Stock or warrants to purchase
Common Stock or are convertible into Common Stock, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act (other than
pursuant to registration rights agreements that the Company has entered into on
or prior to the date of
-12-
the Terms Agreement) relating to, any shares of its Common Stock or any other
capital stock of the Company or any other securities convertible into or
exchangeable or exercisable for any shares of its Common Stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Lead Underwriter for the
Blackout Period, except for any such offer, sale, contract to sell, pledge or
other disposition of (i) securities issued or delivered upon conversion,
exchange or exercise of any other securities of the Company outstanding on the
date of, or to be issued pursuant to, the Terms Agreement, (ii) capital stock of
the Company issued pursuant to benefit or other incentive plans maintained for
its officers, directors, consultants or employees, or (iii) securities issued in
connection with mergers, acquisitions or similar transactions. The Company will
also deliver to the Underwriters, prior to the date of the Closing, from each of
the directors and executive officers of the Company, "lock-up agreements" also
agreeing not to make any such offer, sale, contract to sell or disposition, for
the Blackout Period on such terms as the Company and the Lead Underwriter shall
have agreed.
(k) If the Offered Securities are Common Stock and there are Selling
Stockholders, each Selling Stockholder agrees to execute and deliver to the
Underwriters an agreement substantially to the effect set forth in subsection
4(j) hereof in form and substance satisfactory to the Underwriters.
(l) If the Offered Securities are Common Stock and there are Selling
Stockholders, each Selling Stockholder agrees to deliver to the Lead Underwriter
on or prior to the Closing Date a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities (or Firm
Offered Securities if there is an Over-Allotment Option) on the Closing Date (or
First Closing Date if there is an Over-Allotment Option) and the Optional
Offered Securities, if any, on any Optional Closing Date, if any, will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Selling Stockholders, if any, herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders, if any, of their
obligations hereunder and to the following additional conditions precedent:
(a) No later than the close of business one business day after the date of
the Terms Agreement, the Representatives shall have received a letter, dated the
date of delivery thereof, of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder, and stating in effect that:
(i) in their opinion the financial statements and any schedules
examined by them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71, Interim
Financial Information, on any unaudited financial statements included or
incorporated by reference in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
-13-
(A) the unaudited financial statements, if any, included or
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited financial
statements and summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than five
business days prior to the date of the such letter, there was any
change in the capital stock or any increase in short-term debt or
long-term debt of the Company and its consolidated subsidiaries or, at
the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net current assets
or net assets, as compared with amounts shown on the latest balance
sheet included or incorporated by reference in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included or incorporated by reference in the Prospectus to
the closing date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income statement
included or incorporated by reference in the Prospectus, in
consolidated net revenues, operating cash flow (as that term is
defined in the financial statements examined by them) or in other
income and expense, net, or in the total or (if the Offered Securities
are Common Stock or are convertible into or exercisable for Common
Stock) per share amounts of consolidated net income before
extraordinary items or net income or (if the Offered Securities are or
are exercisable for debt securities) in the ratio of earnings to fixed
charges or (if the Offered Securities are or are exercisable for
preferred stock or depositary shares) in the ratio of earnings to
fixed charges and preferred stock dividends combined; and
(D) the pro forma financial data set forth or incorporated by
reference in the Prospectus does not comply in form in all material
respects to the applicable accounting requirements of the Act and the
related Rules and Regulations or the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of
that data;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
or incorporated by reference in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
-14-
(b) No later than the close of business one business day after the date of
the Terms Agreement, the Representatives shall have received letters, dated the
date of delivery thereof, of each other firm of independent public accountants
(the "OTHER AUDITORS") that has examined any financial statements of other
businesses included or incorporated by reference in the Prospectus, in each case
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder, and
stating, to the extent applicable, in effect that:
(i) in their opinion the financial statements and any schedules
examined by them and included or incorporated by reference in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71, Interim
Financial Information, on any unaudited financial statements included or
incorporated by reference in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii) above and
to the extent applicable, a reading of the latest available interim
financial statements of the company for which they performed the procedures
specified in this subsection (each an "AUDITED COMPANY"), inquiries of
officials of the Audited Company who have responsibility for financial and
accounting matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements, if any, included or
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than five
business days prior to the date of the such letter, there was any
change in the capital stock or any increase in short-term indebtedness
or long-term debt of the Audited Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts shown on the
latest balance sheet included or incorporated by reference in the
Prospectus; or
(C) for the period from the closing date of the latest income
statement included or incorporated by reference in the Prospectus to
the closing date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income statement
included or incorporated by reference in the Prospectus, in
consolidated net revenues, operating income or in other income and
expense, net, or in the total or (if the Offered Securities are Common
Stock or are convertible into or exercisable for Common Stock) per
share amounts of consolidated net income before extraordinary items or
net income or (if the Offered Securities are or are exercisable for
debt securities) in the ratio of earnings to fixed charges or (if the
Offered Securities are or are exercisable for preferred stock or
-15-
depositary shares) in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
or incorporated by reference in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Audited Company and its
subsidiaries subject to the internal controls of the Audited Company's
accounting system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(c) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company, each Selling Stockholder,
if any, or any Underwriter, shall be contemplated by the Commission.
(d) Subsequent to the execution of the Terms Agreement, there shall not
have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities, preferred stock or depositary shares of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities,
preferred stock or depositary shares of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the over-the-
counter market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(e) (i) The Representatives shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel for the Company, stating to
the effect that:
(A) Each of the Company and its subsidiaries listed on Annex V
hereto has been duly incorporated (or formed, as the case may be) and
each of the Company and its subsidiaries is an existing corporation
(or limited partnership or limited liability
-16-
company, as the case may be) in good standing under the laws of the
jurisdiction of its incorporation, with corporate, partnership or
limited liability company power and authority to own its properties
and conduct its business as described in the Offering Document; and is
duly qualified to do business as a foreign corporation (or other
entity) in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not individually have a Material Adverse Effect;
(B) If the Offered Securities are Common Stock or are warrants to
purchase Common Stock or are convertible into Common Stock: except as
disclosed in the Prospectus, there are no contracts, agreements or
understandings known to such counsel between the Company and any
person granting such person the right with respect to any securities
of the Company owned or to be owned by such person to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement;
(C) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement), the applicable Indenture
(if the Offered Securities are debt securities), the Deposit Agreement
(if the Offered Securities are depositary shares) or the Warrant
Agreement (if the Offered Securities are warrants) in connection with
the issuance or sale of the Offered Securities by the Company, except
such counsel need not express any opinion as to (x) such as may be
required by the Communications Act of 1934, as amended (the
"COMMUNICATIONS ACT") or the rules, regulations or orders of the
Federal Communications Commission ("FCC") promulgated thereunder or
any comparable state or local laws, rules, regulations or orders or
(y) such as may be required by the Blue Sky laws of the several states
of the United States;
(D) The execution, delivery and performance by the Company of the
applicable Indenture (if the Offered Securities are debt securities),
the Deposit Agreement (if the Offered Securities are depositary
shares), the Warrant Agreement (if the Offered Securities are
warrants), the Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities,
preferred stock, depositary shares or warrants, any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities and, if
the Offered Securities are debt securities, preferred stock,
depositary shares or warrants, compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or, to such
counsel's knowledge, any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound including, but not limited to, the Credit
Agreement, or to which any of the properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, except that such counsel need not express any
opinion with respect to the Communications Act or the rules,
regulations or orders of the FCC promulgated thereunder or any
comparable state or local laws, rules, regulations or orders, and the
Company has full corporate power and authority to authorize, issue and
sell the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(E) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of
-17-
such counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the registration statements relating
to the Registered Securities, as of their respective effective dates,
the Registration Statement and the Prospectus, as of the date of the
Terms Agreement, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statements, as of their respective effective dates, the
Registration Statement, as of the date of the Terms Agreement or as of
the Closing Date, or any amendment thereto, as of its date or as of
the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of such
Closing Date, or any amendment or supplement thereto, as of its date
or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate in all material respects and fairly present the information
required to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus
which are not described as required or of any contracts or documents
of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the
financial statements or schedules or other financial data contained in
the Registration Statement or the Prospectus, or with respect to the
Communications Act or the rules, regulations and orders of the FCC
promulgated thereunder or any comparable state or local laws, rules,
regulations or orders; and
(F) If the Offered Securities are Common Stock: all outstanding
shares of the Common Stock of the Company, other than the Offered
Securities, have been duly authorized and validly issued, are fully
paid and nonassessable and conform in all material respects to the
description thereof contained in the Prospectus under "Description of
Capital Stock";
(ii) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company, stating to
the effect that:
(A) If the Offered Securities are debt securities: the applicable
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act; the
Offered Securities have been duly authorized by the Company; the
Offered Securities other than any Contract Securities have been duly
executed, authenticated, issued and delivered by the Company; assuming
due authorization, execution and delivery of the Indenture and
authentication of the Offered Securities by the Trustee, such
Indenture and the Offered Securities other than any Contract
Securities constitute, and any Contract Securities, when executed,
issued and delivered in the manner provided in such Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to
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or affecting creditors' rights and to general equity principles; and
the Offered Securities other than any Contract Securities conform, and
any Contract Securities, when so issued and delivered and sold will
conform, to the description thereof contained in the Prospectus;
(B) If the Offered Securities are preferred stock: the Offered
Securities have been duly authorized; the Offered Securities other
than any Contract Securities have been validly issued and are fully
paid and nonassessable; any Contract Securities, when issued,
delivered and sold pursuant to Delayed Delivery Contracts, will be
validly issued, fully paid and nonassessable; and the Offered
Securities other than any Contract Securities conform, and any
Contract Securities, when so issued, delivered and sold, will conform,
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities;
(C) If the Offered Securities are depositary shares: the Deposit
Agreement has been duly authorized, executed and delivered by the
Company; the Offered Securities and the shares of the Company's
preferred stock represented by the Offered Securities have been duly
authorized by the Company; the Offered Securities other than any
Contract Securities have been validly issued and delivered and such
shares of the Company's preferred stock have been validly issued,
fully paid and nonassessable; any Contract Securities when issued,
delivered and sold pursuant to Delayed Delivery Contracts, will be
validly issued and delivered and such shares of the Company's
preferred stock represented by the Contract Securities will be validly
issued, fully paid and nonassessable; the Offered Securities other
than the Contract Securities conform, and any Contract Securities when
so issued, delivered and sold, will conform, to the description
thereof contained in the Prospectus; the deposit by the Company of the
shares of the Company's preferred stock represented by the Offered
Securities in accordance with the Deposit Agreement has been duly
authorized; each Offered Security represents a legal and valid
fractional interest in shares of the Company's preferred stock as
described in the Prospectus; the depositary receipts evidencing the
Offered Securities entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities or the shares of the Company's preferred stock represented
thereby;
(D) If the Offered Securities are warrants: the Warrant Agreement
has been duly authorized, executed and delivered by the Company; the
Offered Securities and the Warrant Securities have been duly
authorized (including, in the case of Warrant Securities constituting
depositary shares, the shares of the Company's preferred stock
represented by such depositary shares); the Offered Securities other
than any Contract Securities have been duly executed, authenticated,
issued and delivered (as the case may be); any Contract Securities,
when issued, delivered and sold pursuant to Delayed Delivery
Contracts, will be duly executed, authenticated, issued and delivered
(as the case may be); the Offered Securities other than the Contract
Securities conform, and any Contract Securities when so issued,
delivered and sold will conform, to the description thereof contained
in the Prospectus; the Warrant Agreement and the Offered Securities
other than the Contract Securities constitute, and the Contract
Securities when executed, authenticated, issued and delivered (as the
case may be) in the manner provided in the Warrant Agreement and sold
pursuant to Delayed Delivery Contracts will constitute, valid and
legally binding obligations of the Company enforceable with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and assuming due authorization, execution and delivery of
the
-19-
Warrant Agreement by the Warrant Agent, (a) in the case of Warrant
Securities constituting debt securities, the applicable Indenture have
been duly authorized, executed and delivered, such Warrant Securities
have been duly authorized, executed, issued and delivered by the
Company and will conform to the description thereof contained in the
Prospectus and, assuming due authorization, execution and delivery of
the Indenture and authentication of the Offered Securities by the
Trustee, such Indenture and such Warrant Securities constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; (b) in the case of Warrant Securities
constituting preferred stock, the Warrant Securities have been validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus, and the stockholders of the
Company have no preemptive rights with respect to the Warrant
Securities; (c) in the case of Warrant Securities constituting
depositary shares, (i) the Warrant Securities have been validly issued
and delivered and the shares of the Company's preferred stock
represented by such Warrant Securities have been validly issued, fully
paid and nonassessable and each conforms to the description thereof
contained in the Prospectus, (ii) the Deposit Agreement has been duly
authorized, executed and delivered by the Company and the deposit by
the Company of the shares of the Company's preferred stock represented
by the Warrant Securities in accordance with the Deposit Agreement has
been duly authorized by the Company, (iii) each Warrant Security
represents a legal and valid fractional interest in shares of the
Company's preferred stock as described in the Prospectus, and (iv) the
Warrant Securities entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement, and the stockholders of
the Company have no preemptive rights with respect to the Warrant
Securities or the shares of the Company's preferred stock represented
thereby; and (d) in the case of Warrant Securities constituting Common
Stock, the Warrant Securities and all outstanding shares of capital
stock of the Company have been duly authorized, validly issued, fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus, and the stockholders of the Company have
no preemptive rights with respect to the Warrant Securities;
(E) If the Offered Securities are convertible: the Offered
Securities other than any Contract Securities are, and any Contract
Securities, when (if the Offered Securities are debt securities)
executed, authenticated, issued and delivered in the manner provided
in the applicable Indenture and sold pursuant to Delayed Delivery
Contracts or (if the Offered Securities are preferred stock) when
issued, delivered and sold pursuant to Delayed Delivery Contracts,
will be convertible into Common Stock of the Company in accordance
with (if they are debt securities) such Indenture or (if they are
preferred stock) their terms; the shares of Common Stock initially
issuable upon conversion of the Offered Securities have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect
to the Common Stock;
(F) If the Offered Securities are Common Stock: the Offered
Securities have been duly authorized and validly issued, are fully
paid and nonassessable and conform in all material respects to the
description thereof contained in the Prospectus under "Description of
Capital Stock"; and the stockholders of the Company have no preemptive
rights under Delaware law or the Company's Certificate of
Incorporation with respect to the Offered Securities;
(G) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities,
preferred stock, depositary shares or warrants, any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company; and
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(H) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities, the Registration Statement, the Prospectus and other related matters
as the Representatives may require, and the Company shall have furnished to such
counsel such documents as they may request for the purpose of enabling them to
pass upon such matters.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the Chief Executive Officer of the Company and the Chief
Financial Officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state on behalf of the Company
that the representations and warranties of the Company in this Agreement are
true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date, that no stop order suspending the effectiveness of
the Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most recent financial
statements in or incorporated by reference in the Prospectus, there has been no
material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(h) The Representatives shall have received letters, dated the Closing
Date, of Deloitte & Touche LLP and the Other Auditors, which meet the
requirements of subsections (a) and (b) of this Section, respectively, except
that the specified date referred to in such subsection will be a date not more
than five days prior to the Closing Date for the purposes of this subsection.
(i) The Representatives shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Vice President of the Company and Vice President
and General Counsel of Verestar Inc., stating to the effect that:
(i) No consent, approval, authorization, order or waiver of, or filing
with, the FCC under the Communications Act, and the published policies,
rules and regulations of the FCC or any comparable state or local laws,
rules, regulations or orders is required to be obtained or made for the
consummation of the transactions contemplated by the Indenture (if the
Offered Securities are debt securities), the Deposit Agreement (if the
Offered Securities are depositary shares), the Warrant Agreement (if the
Offered Securities are warrants) and the Terms Agreement (including the
provisions of this Agreement) in connection with the sale of the Offered
Securities where the failure to obtain such consent, approval,
authorization, order or waiver or to make such filing would have a Material
Adverse Effect;
(ii) The execution, delivery and performance of the Indenture (if the
Offered Securities are debt securities), the Deposit Agreement (if the
Offered Securities are depositary shares), the Warrant Agreement (if the
Offered Securities are warrants) and the Terms Agreement (including the
provisions of this Agreement) and the consummation of the transactions
therein contemplated will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under the Communications
Act or any FCC regulation, rule, published policy or order or any
comparable state or local laws, rules, regulations or orders that would
have a Material Adverse Effect; and
-21-
(iii) To the knowledge of such counsel, except as disclosed in the
Prospectus, there are no administrative or judicial proceedings pending
before, or threatened by, the FCC with respect to the Company or any
subsidiary of the Company, or any towers owned or operated by the Company
or any subsidiary of the Company that, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
(j) If the Offered Securities are Common Stock and there are Selling
Stockholders, the Representatives shall have received an opinion, dated the
Closing Date, of the counsel for the Selling Stockholders, to the effect that:
(i) Each Selling Stockholder had valid and unencumbered title to the
Offered Securities delivered by such Selling Stockholder on such Closing
Date and had full right, power and authority to sell, assign, transfer and
deliver the Offered Securities delivered by such Selling Stockholder on
such Closing Date; and the several Underwriters have acquired valid and
unencumbered title to the Offered Securities purchased by them from the
Selling Stockholders on such Closing Date;
(ii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by any Selling Stockholder for the consummation of the transactions
contemplated by the Custody Agreements or the Terms Agreement (including
the provisions of this Agreement) in connection with the sale of the
Offered Securities sold by the Selling Stockholders, except such as have
been obtained and made under the Act and such as may be required under
state securities laws;
(iii) The execution, delivery and performance of the Custody Agreement
and the Terms Agreement (including the provisions of this Agreement) and
the consummation of the transactions therein contemplated will not result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, the certificate of incorporation or bylaws or
agreement of limited partnership or other constituent document of such
Selling Stockholder (if such Selling Stockholder is a corporation or
limited partnership or other entity) or any statute, any rule, regulation
or order of any governmental agency or body or any court having
jurisdiction over any Selling Stockholder or any of their properties or any
agreement or instrument to which any Selling Stockholder is a party or by
which any Selling stockholder is bound or to which any of the properties of
any Selling Stockholder is subject, or the constituent documents, if any,
of such Selling Stockholder;
(iv) The Power of Attorney and related Custody Agreement with respect
to each Selling Stockholder has been duly authorized, executed and
delivered by such Selling Stockholder and constitute valid and legally
binding obligations of each such Selling Stockholder enforceable in
accordance with their terms subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and to general
equity principles; and
(v) The Terms Agreement (including the provisions of this Agreement)
has been duly authorized, executed and delivered by each Selling
Stockholder.
The Company and Selling Stockholders, if any, will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably request. The Lead Underwriter may in its sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters under this Agreement and the Terms
Agreement.
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6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(b) If the Offered Securities are Common Stock and there are Selling
Stockholders, each Selling Stockholder severally and not jointly, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein; provided, further, that a Selling
Stockholder shall only be subject to such liability to the extent that the
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 Selling Stockholder specifically for use therein. The
foregoing indemnity agreement with respect to any untrue statement or omission
in the Preliminary Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person at or prior to the written confirmation of the sale of the Offered
Securities to such person, and the Prospectus (as amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities. In no event, however, shall the liability of any Selling
Stockholder for indemnification under this Section 6(b) exceed the lesser of (i)
the proceeds received by such Selling Stockholder from the Underwriters in the
Offering and (ii) that portion of the total losses, claims, damages and
liabilities for which the Underwriters and any controlling persons may be
subject to indemnification hereunder equal to the ratio of the total number of
Offered Securities sold hereunder by such Selling Stockholder as compared to the
total Offered Securities sold hereunder by all Selling Stockholders.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder, if any, against any losses,
claims, damages or liabilities to which the Company or such Selling Stockholder
or may become subject, under the Act or otherwise, insofar as such losses,
claims,
-23-
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 the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company and
such Selling Stockholder in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement. No indemnifying party shall be liable under subsections (a), (b) or
(c) of this Section for any settlement of any claim or action effected without
its consent, which consent will not be unreasonably withheld.
(d) 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, to
the extent applicable, subsection (a), (b) or (c) 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 otherwise than under, to the extent applicable, subsection
(a), (b) or (c) 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 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 (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under, to the extent
applicable, subsection (a), (b) or (c) 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, to the extent
applicable, subsection (a), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders, if any, on the one hand and the Underwriters on the other
from the offering of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders,
if any, on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders, if any, on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholders, if any, bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders, if any, or the
-24-
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders, if any,
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
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities on the Closing Date (or First
Closing date if there is an Over-Allotment Option) or any Optional Closing Date,
if any, under the Terms Agreement and the aggregate principal amount (if debt
securities) or number of shares (if preferred stock, Common Stock or depositary
shares) or warrants (if warrants) of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount (if debt securities) or number of shares (if
preferred stock, Common Stock or depositary shares) or warrants (if warrants) of
Offered Securities, the Lead Underwriter may make arrangements satisfactory to
the Company and the Selling Stockholders, if any, for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount (if debt securities) or number of shares (if
preferred stock, Common Stock or depositary shares) or warrants (if warrants) of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount (if debt securities) or number of shares (if
preferred stock, Common Stock or depositary shares) or warrants (if warrants) of
Offered Securities and arrangements satisfactory to the Lead Underwriter, the
Company and the Selling Stockholders, if any, for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default, the
Terms Agreement will terminate without liability on the part of any non-
defaulting Underwriter, the Company or the Selling Stockholders, if any, except
as provided in Section 8 (provided that in the event there is an Over-Allotment
Option, if such default occurs with respect to Optional Offered Securities after
the First Closing Date, the Terms Agreement will not terminate as to the Firm
Offered Securities or any Optional Offered Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. If the Offered
Securities are debt securities, preferred stock or warrants, the respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amount (if debt securities) or number of
shares (if preferred stock, Common Stock
-25-
or depositary shares) or warrants (if warrants) of the Offered Securities set
forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, if any, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to the Terms Agreement (including the
provisions of this Agreement) will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Selling Stockholders, if any, the Company or any
of their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
the Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company, the Selling
Stockholders, if any, and the Underwriters pursuant to Section 6 shall remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of the
Terms Agreement pursuant to Section 7, the Company and the Selling Stockholders,
if any, will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to them
at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Chief Executive Officer or, if sent to the Selling Stockholders, if
any, will be mailed, delivered or telegraphed and confirmed to them at their
address furnished to the Company in writing for the purpose of communications
hereunder.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company, the
Selling Stockholders, if any, and such Underwriters as are identified in the
Terms Agreement and their respective personal representatives and successors and
the officers and directors and controlling persons referred to in Section 6, and
no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters. The Selling Stockholders
will be represented by the representatives identified in the Terms Agreement
(the "SELLING STOCKHOLDER REPRESENTATIVES") in connection with the transactions
described in the Terms Agreement, and any action under such Terms Agreement
(including the provisions of this Agreement) taken by any of them will be
binding upon all the Selling Stockholders.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to the Terms Agreement (including the
provisions of this Agreement) or the transactions contemplated thereby.
-26-
If the foregoing is in accordance with your understanding, kindly sign and
return to the Company six of the counterparts hereof.
Very truly yours,
AMERICAN TOWER CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
------------------------------
-27-
ANNEX I
AMERICAN TOWER CORPORATION
("COMPANY")
Debt Securities
TERMS AGREEMENT
---------------
________ __, 20__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement[s] on Form S-3 (No. 333-37988[; No. 333-
________]) ("UNDERWRITING AGREEMENT"), the following securities ("OFFERED
SECURITIES") on the following terms:
TITLE: [ %] [Floating Rate]--[Subordinated]--Notes--Debentures--Bonds--
Due .
PRINCIPAL AMOUNT: $ .
OVER-ALLOTMENT OPTION: [YES] [NO]
[OVER-ALLOTMENT OPTION PERCENTAGE:]
Interest: [ % per annum, from , 20__, payable semiannually
on and , commencing , 20__, to holders of record
on the preceding or , as the case may be.] [Zero coupon.]
-28-
MATURITY: , 20__.
OPTIONAL REDEMPTION:
SINKING FUND:
TRUSTEE:
INDENTURE: Indenture, dated as of [_______ __], 2000, between the Company
and the above-named Trustee.
LISTING: [None.] [New York Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be ,
20__. Underwriters' fee is % of the principal amount of the Contract
Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest[, if
any,] from , 20__.
EXPECTED REOFFERING PRICE: % of principal amount, subject to change by
the [Representative[s] [Underwriters].
CLOSING: A.M. on , 20__, at , in
Federal (same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry Only via
DTC. The Offered Securities [will] [will not] trade in DTC's Same Day Funds
Settlement System.]
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing
Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments--and--, --stabilizing [and
passive market making] on the inside front cover page of the prospectus
supplement--and--, --the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement [If
paragraph regarding passive market making is included, insert--and the
information contained in the paragraph under the caption "Underwriting" in the
prospectus supplement] [If applicable, insert--; and (ii) the following
information in the prospectus
-29-
supplement furnished on behalf of [insert name of Underwriter]: [insert
description of information, such as material relationship disclosure under the
caption "Underwriting" in the prospectus supplement]./(1)/
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
American Tower Corporation
By..................................................
[Insert title]
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form. If co-representative,
use second.]
[Representative]
By..................................................
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
[Representative]
..........................................................
.........................................................,
[Acting on behalf of themselves and as the Representatives of the several
Under-writers.]
[Representative]
By......................................................
[Insert title]
--------------------
/(1)/ Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
-30-
SCHEDULE A
PRINCIPAL [PRINCIPAL
[FIRM] OPTIONAL
UNDERWRITER AMOUNT AMOUNT]
---------------------------------------------------- ------------ ------------
Total....................................... $
============
-31-
ANNEX II
AMERICAN TOWER CORPORATION
("COMPANY")
Warrants
TERMS AGREEMENT
---------------
___________ __, 20__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement[s] on Form S-3 (No. 333-37988[; No. 333-
________]) ("UNDERWRITING AGREEMENT"), the following securities ("OFFERED
SECURITIES") on the following terms:
DESCRIPTION OF WARRANTS:
TITLE OF WARRANT:
WARRANT AGENT:
WARRANT AGREEMENT: Warrant Agreement, dated as of [________ ___], 2000,
between the Company and the above-named Warrant Agent.
WARRANT EXERCISE PRICE CURRENCY AND DATE:
OVER-ALLOTMENT OPTION: [YES] [NO]
[OVER-ALLOTMENT OPTION PERCENTAGE:]
Principal amount or number of Securities
ISSUABLE UPON EXERCISE OF WARRANT:
Date after which Warrants may be exercised:
EXPIRATION DATE:
-32-
DETACHABLE DATE:
DESCRIPTION OF SECURITIES ISSUABLE
UPON EXERCISE OF WARRANTS:
LISTING: [None.] [New York Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be ,
20__. Underwriters' fee is $ per share of the Contract
Securities.]
PURCHASE PRICE: $ per share [If preferred stock issue, insert--plus
accrued dividends[, if any,] from , 20 ].
EXPECTED REOFFERING PRICE: $ per share, subject to change by the
[Representative[s]] [Underwriters].
CLOSING: A.M. on , 20__, at , in Federal
(same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry Only via
DTC. The Offered Securities [will] [will not] trade in DTC's Same Day Funds
Settlement System.]
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective number of the Offered Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the prospectus
supplement [If paragraph regarding passive market making is included, insert--
and the information contained in the paragraph under the caption "Underwriting"
in the prospectus supplement] [If applicable, insert--; and (ii) the following
information in the prospectus supplement furnished on behalf of [insert name of
Underwriter]: [insert description of information, such as material relationship
disclosure under the caption "Underwriting" in the prospectus supplement]./(2)/
--------------------
/(2)/ Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
-33-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
American Tower Corporation
By..................................................
[Insert title]
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form. If co-representative,
use second.]
[Representative]
By..................................................
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
[Representative]
...........................................................
...........................................................
[Acting on behalf of themselves and as the Representatives of the several
Underwriters.]
By [Representative]
By.......................................................
[Insert title]
-34-
SCHEDULE A
NUMBER OF [NUMBER OF
[FIRM] OPTIONAL
UNDERWRITER WARRANTS WARRANTS]
----------- -------- ---------
-------------
Total..................................
=============
-35-
ANNEX III
AMERICAN TOWER CORPORATION
("COMPANY")
[Preferred Stock]
[COMMON STOCK]
[DEPOSITARY SHARES]
TERMS AGREEMENT
---------------
___________ __, 20__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statements on Form S-3 (No. 333-37988; No. 333-________)
("UNDERWRITING AGREEMENT"), the following securities ("OFFERED SECURITIES") on
the following terms:
TITLE:
NUMBER OF [DEPOSITARY] SHARES:
OVER-ALLOTMENT OPTION: [YES] [NO]
[OVER-ALLOTMENT OPTION PERCENTAGE:]
[DETERMINATION OF ALLOCATION OF OVER-ALLOTMENT OPTION
BETWEEN THE COMPANY AND THE SELLING STOCKHOLDERS:]
[DIVIDEND RATE:]
[OPTIONAL REDEMPTION:]
[SINKING FUND:]
LISTING: [None.] [New York Stock Exchange.] [The Nasdaq Stock Market
Inc.'s National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be ,
20__. Underwriters' fee is $ per share of the Contract Securities.]
-36-
PURCHASE PRICE: $ per [Depositary] share [If preferred stock issue
or depositary share, insert--plus accrued dividends[, if any,] from ,
20__].
EXPECTED REOFFERING PRICE: $ per [Depositary] share, subject to
change by the [Representative[s]] [Underwriters].
[NAME OF DEPOSITARY:]
[DEPOSIT AGREEMENT: Deposit Agreement, dated as of [________ __], 2000,
among the Company, the above-named Depositary and the holders
from time to time of depositary receipts issued thereunder.]
[FRACTION OF A SHARE EQUAL TO ONE DEPOSITARY SHARE:]
[SEC FILE NO. OF SELLING STOCKHOLDER REGISTRATION STATEMENT:]
[CUSTODIAN]
[NAME[S] AND ADDRESS[ES] OF SELLING STOCKHOLDER[S]:]
CLOSING: A.M. on , 20__, at ,
in Federal (same day) funds.
UNDERWRITER[S'][`S] COMPENSATION: $ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
[NAME[S] AND ADDRESS[ES] OF SELLING STOCKHOLDER REPRESENTATIVE[S]:]
The respective numbers of shares of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto. [The respective number of shares of the Offered Securities to be sold
by [each of] the Selling Stockholder[s] are set forth opposite [their] [its]
name[s] in Schedule B hereto.]
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the prospectus
supplement [If paragraph regarding passive market making is included, insert--
and the information contained in the paragraph under the caption "Underwriting"
in the prospectus supplement] [If applicable, insert--; and (ii) the following
information in the prospectus supplement furnished on behalf of [insert name of
Underwriter]: [insert description of information, such as material relationship
disclosure under the caption "Underwriting" in the prospectus supplement]./(3)/
--------------------
/(3)/ Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
-37-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
American Tower Corporation
By..................................................
[Insert title]
[Each of the Selling Stockholders
Listed on Schedule B Hereto
By..................................................
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form. If co-representative,
use second.]
[Representative]
By..................................................
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
[Representative]
...........................................................
...........................................................
[Acting on behalf of themselves and as the Representatives of the several
Underwriters.]
[Representative]
By.......................................................
[Insert title]
-38-
SCHEDULE A
NUMBER OF [NUMBER OF
[FIRM] OPTIONAL
UNDERWRITER SHARES SHARES]
----------- ---------- ----------
------------
Total..............................................
============
-39-
[SCHEDULE B]
NUMBER OF [NUMBER OF
[FIRM] OPTIONAL
SHARES TO SHARES TO
SELLING STOCKHOLDER BE SOLD BE SOLD]
------------------- --------- ----------
--------------
Total.............................................
==============
-40-
ANNEX IV
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive
not later than 9:00 A.M., New York time,
on .........................., 20__./(4)/)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
American Tower Corporation
c/o [Representative]
Gentlemen:
The undersigned ▇▇▇▇▇▇ agrees to purchase from American Tower Corporation, a
Delaware corporation ("COMPANY"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 20__ ("DELIVERY DATE"),]
[$]..............[shares]
--principal amount--of the Company's [Insert title of securities]
("SECURITIES"), offered by the Company's Prospectus dated , 20__ and a
Prospectus Supplement dated , 20__ relating thereto,
receipt of copies of which is hereby acknowledged, at-- % of the principal
amount thereof plus accrued interest, if any,--$ per share plus accrued
dividends, if any,--and on the further terms and conditions set forth in this
Delayed Delivery Contract ("CONTRACT").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the--principal--amounts set
forth below:
PRINCIPAL AMOUNT
----------------
NUMBER OF
DELIVERY DATE [WARRANTS] SHARES
------------- -----------------
.............................................. .............
.............................................. .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
--------------------
/(4)/ Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
-41-
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
in Federal (same day) funds by wire transfer to an account designated by the
Company at a bank acceptable to the Lead Underwriter, at the office of
at A.M. on--the--such--Delivery Date upon delivery to the undersigned of
the Securities to be purchased by the undersigned--for delivery on such Delivery
Date--in definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and
accept payment for, and the obligation of the undersigned to take delivery of
and make payment for, Securities on--the--each--Delivery Date shall be subject
only to the conditions that (1) investment in the Securities shall not at--the--
such--Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and which governs such
investment and (2) the Company shall have sold to the Underwriters the total--
principal amount--number of shares--of the Securities less the--principal
amount---number of shares--thereof covered by this and other similar Contracts.
The undersigned represents that its investment in the Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
-42-
It is understood that the acceptance of any such Contract is in the Company's
sole discretion and, without limiting the foregoing, need not be on a first-
come, first-served basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
....................................................
(Name of Purchaser)
By .................................................
.................................................
(Title of Signatory)
.................................................
.................................................
(Address of Purchaser)
Accepted, as of the above date.
American Tower Corporation
By ....................................
[Insert Title]
-43-
ANNEX V
American Towers, Inc.
ATC Holding, Inc.
ATC Operating, Inc.
ATC GP Inc.
ATC LP, Inc.
American Tower, L.P.
Towersites Monitoring, Inc.
Verestar Inc.
ATC Realty, Inc.
ATI Merger Corporation
ATC Financing LLC
ATC Broadcast GP, Inc.
American Tower Delaware Corporation
-44-