EXHIBIT 10.1
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMONG
AMERICAN TOWER CORPORATION
and
THE STOCKHOLDERS NAMED HEREIN
February 25, 1999
TABLE OF CONTENTS
1. Registration of Securities...........................................1
(a) Registration by ATC.........................................1
(b) Registration at Stockholders' Request.......................2
(c) Registration Generally......................................3
(d) Restrictions on Registration................................7
(e) Additional Restrictions on Registration.....................7
2. Conditions to Registration...........................................8
3. Indemnification......................................................8
(a) Indemnification by ATC......................................8
(b) Indemnification by Holders of Registrable Securities........9
(c) Procedure...................................................9
(d) Contribution...............................................10
4. Exchange Act Registration...........................................11
5. Termination of Registration Obligations.............................12
6. Registration Rights of Others.......................................13
7. Mergers, etc........................................................13
8. Annual and Quarterly Reports; Other Information.....................13
9. Lock-Up Agreement...................................................13
10. Withdrawals.........................................................14
11. Definitions.........................................................14
12. Miscellaneous.......................................................18
(a) Assignment; Successors and Assigns.........................18
(b) Specific Performance; Other Rights and Remedies............18
(c) Expenses...................................................18
(d) Entire Agreement...........................................18
(e) Waivers; Amendments........................................19
(f) Notices....................................................19
(g) Severability...............................................19
(h) Counterparts...............................................20
(i) Section Headings...........................................20
(j) Governing Law..............................................20
(k) Further Acts...............................................20
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
"Agreement") is made and entered into as of February 25, 1999, by and among
American Tower Corporation, a Delaware corporation ("ATC"), and the undersigned
Persons which have heretofore agreed to acquire or have acquired the Registrable
Securities (individually a "Stockholder" and collectively the "Stockholders"
which term is further defined in Section 12(a)).
WHEREAS, American Tower Systems Corporation (now known as American
Tower Corporation) and certain of the Stockholders are parties to a Registration
Rights Agreement, dated as of January 22, 1998 (the "Original Registration
Rights Agreement"); and
WHEREAS, ATC and the Stockholders desire to amend and restate the
Original Registration Rights Agreement in its entirety to make certain changes
to the Original Registration Rights Agreement; and
WHEREAS, ATC has entered into and may in the future enter into
agreements pursuant to which it has agreed or will have agreed to issue
securities the holders of which have required or will require registration
rights of a nature set forth in this Agreement;
NOW, THEREFORE, in consideration of the recitals, the mutual covenants
and agreements herein contained, and other valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby covenant and agree as follows:
1. Registration of Securities.
(a) Registration by ATC. If at any time or from time to time ATC shall
propose to file on its behalf or on behalf of any of its security holders a
registration statement under the Securities Act with respect to any class of
Common Stock, except in connection with an Excluded Offering, ATC shall, except
to the extent not required to do so pursuant to the provisions of Section 1(d)
or 1(e), in each case:
(i) promptly give written notice to each Stockholder at least
thirty (30) days (or such shorter period as ATC deems reasonable under
the circumstances) before the anticipated filing date. Such notice
shall include the anticipated offering price or range thereof and the
plan of distribution;
(ii) include in such registration (and any related
qualification under blue sky or other state securities laws), and, at
the request of a Stockholder, in any underwriting involved therein, all
Registrable Securities specified in a written request or requests, made
within ten (10) business days after such written notice from ATC, by
any Stockholder; and
(iii) use its reasonable business efforts to cause the
managing underwriter or underwriters of any proposed underwritten
offering of any class of Common Stock to permit the Registrable
Securities requested to be included in the Registration Statement for
such offering on the same terms and conditions as the Common Stock of
ATC included therein. Notwithstanding the foregoing, if the managing
underwriters of such offering deliver a written opinion to the holders
of such Registrable Securities that marketing considerations require a
limitation on the Registrable Securities included in any Registration
Statement filed under this Section, then, subject to the advice of said
managing underwriter or underwriters as to the size and composition of
the offering, and subject to the provisions of Section 1(d), such
limitation will be imposed pro rata (based upon the relative proposed
public offering price of the Registrable Securities proposed to be
included) among all holders of Registrable Securities who requested
inclusion in the registration pursuant to this Section.
If any Stockholder desires to have Registrable Securities registered
under this Section, it shall be required so to advise ATC in writing within ten
(10) business days after the date of ATC's notice, setting forth the number or
amount of Registrable Securities for which registration is so requested. Neither
the delivery of the notice by ATC nor of the request by any Stockholders shall
in any way obligate ATC to file a Registration Statement and, notwithstanding
such filing, ATC may, at any time prior to the effective date thereof, determine
not to offer the securities to which the registration statement relates without
liability to any of the Stockholders. No registration of Registrable Securities
effected under this Section shall relieve ATC of its obligation to effect
registration of Registrable Securities upon any request made pursuant to the
provisions of Section 1(b).
Anything in this Section 1(a) to the contrary notwithstanding, the
provisions of this Section 1(a) shall not apply to any registration statement
filed by ATC under the Securities Act pursuant to the provisions of the CSFB
Agreement.
(b) Registration at Stockholders' Request. Upon the written request of
any Significant Stockholder requesting that ATC effect the registration under
the Securities Act of all or part of the Registrable Securities held by such
Stockholder, specifying the intended method or methods of disposition of such
Registrable Securities, ATC shall, except to the extent not required to do so
pursuant to the provisions of this Section 1(b) or Section 1(d) or (e), promptly
(and in any event within five (5) business days) give written notice of such
requested registration to all holders of Registrable Securities and thereupon
will expeditiously prepare and, within forty-five (45) days, use its reasonable
business efforts to file under the Securities Act a registration statement and
effect the registration of:
(i) the Registrable Securities which ATC has been so requested
to register by such Stockholders, for disposition in accordance with
the intended method of disposition stated in such request, and
(ii) all other Registrable Securities which ATC has been
requested to register by the holders of Registrable Securities by
written request delivered to ATC within ten (10) business days after
the giving of such notice by ATC (which request shall specify the
intended method of disposition of such Registrable Securities).
Each registration requested pursuant to this Section shall be effected
by the filing of a Registration Statement on Form S-1 (or such other form as the
Commission may from time to time require in order to effectuate a public
offering of common stock of a company such as ATC and in a method of disposition
such as that proposed), unless the use of a different form has been agreed upon
in writing by holders of not less than a majority in value (based upon the
proposed public offering price) of the Registrable Securities as to which
registration has so been requested. Notwithstanding the preceding sentence, ATC
need not so cause a Registration Statement so filed pursuant to the provisions
of this Section on a Form S-1 (or any successor form) to become effective under
the Securities Act on more than four (4) occasions, one of which can be
initiated only by or with the consent of ▇▇▇; provided, however, that there
shall be no limit on the number of times ATC is obligated to file Registration
Statements on Form S-2 or S-3 (or any successor forms) pursuant to the
provisions of this Section (except as contemplated by the definition of
Significant Stockholder); and provided further, however, that any registration
of Registrable Securities requested by one or more Stockholders pursuant to this
Section which shall not have become and remained effective in accordance with
the provisions of Section 1(c) shall not be deemed to be a registration for
purposes of this Section.
ATC shall not grant to any person the right to request ATC to register,
nor shall ATC include in any registration pursuant to this Section, any
securities other than the Registrable Securities, without the written consent of
holders of not less than a majority in value (based upon the proposed public
offering price) of the Registrable Securities as to which registration has been
so requested.
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Whenever registration requested by one or more Stockholders pursuant to
this Section is for an underwritten offering, only Registrable Securities which
are to be distributed by the underwriters designated by such Stockholders may be
included in such registration, without the written consent of holders of not
less than a majority in value (based upon the proposed public offering price) of
the Registrable Securities as to which registration has been so requested. If
Stockholders holding not less than a majority in value of the Registrable
Securities (based upon the proposed public offering price) to be included in
such registration shall determine that the number of Registrable Securities
should be limited due to market conditions or otherwise, all holders of
Registrable Securities proposing to sell Registrable Securities in such
underwritten offering shall share pro rata in the number of Registrable
Securities to be excluded from such underwritten offering, such sharing to be
based on the value (based upon the proposed public offering price) of the
respective numbers of Registrable Securities as to which registration has been
requested by such Stockholders.
(c) Registration Generally. If and when ATC shall be required by the
provisions of this Section to effect the registration of Registrable Securities
under the Securities Act, ATC will use its reasonable business efforts to effect
such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto it will, subject to the provisions of Section 1(d) and 1(e), as
expeditiously as possible:
(i) before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, furnish to the holders of the
Registrable Securities covered by such Registration Statement and the
managing underwriters, if any, copies of all such documents proposed to
be filed, which documents will be made available, on a timely basis,
for review by such holders and underwriters, and their respective
counsel, and ATC will not file any Registration Statement or amendment
thereto or any Prospectus or any supplement thereto to which the
holders of not less than a majority in value (based upon the proposed
public offering price) of the Registrable Securities covered by such
Registration Statement or the managing underwriters, if any, shall
reasonably have objected;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to any Registration Statement, and such
supplements to the Prospectus, as may be reasonably requested by any
holder of Registrable Securities included in such Registration
Statement or any underwriter of Registrable Securities or as may be
required by the rules, regulations or instructions applicable to the
registration form utilized by ATC or by the Securities Act, the
Exchange Act or otherwise necessary to keep such Registration Statement
effective for the applicable period and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of disposition by the holders of such
Registrable Securities set forth in such Registration Statement or
Prospectus as so supplemented;
(iii) notify the selling holders of Registrable Securities and
the managing underwriters, if any, promptly, and (if requested by any
such Person) confirm such advice in writing,
(A) when the Prospectus or any supplement
thereto or any amendment or post-effective
amendment to the Registration Statement has
been filed, and, with respect to the
Registration Statement or any post-effective
amendment, when the same has become
effective,
(B) of any request by the Commission for
amendments or post-effective amendments to
the Registration Statement or supplements to
the Prospectus or for additional
information,
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(C) of the issuance by the Commission of any
stop order suspending the effectiveness of
the Registration Statement or the initiation
or threatening of any proceeding for such
purpose,
(D) if at any time the representations and
warranties of ATC contemplated by paragraph
(xv) below cease to be true and correct in
all material respects,
(E) of the receipt by ATC of any notification
with respect to the suspension of the
qualification of the Registrable Securities
for sale in any jurisdiction or the
initiation or threatening of any proceeding
for such purpose, and
(F) of the existence of any Event which results
in the Registration Statement, the
Prospectus or any document incorporated
therein by reference containing an untrue
statement of material fact or omitting to
state a material fact required to be stated
therein or necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading;
(iv) use its reasonable business efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement or any qualification referred to in paragraphs
(iii)(C) and (iii)(E) at the earliest possible moment;
(v) if requested by the managing underwriters or a holder of
Registrable Securities being sold in connection with an underwritten
offering, immediately incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information
as the managing underwriters or the holders of not less than a majority
in value (based upon the proposed public offering price) of the
Registrable Securities being sold reasonably request to have included
therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with
respect to the amount of other Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten
(or best efforts underwritten) offering of the Registrable Securities
to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment promptly after being
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(vi) at the request of any selling holder of Registrable
Securities, furnish to such selling holder of Registrable Securities
and each managing underwriter, if any, without charge, at least one
signed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(vii) deliver to each selling holder of Registrable Securities
and the underwriters, if any, without charge, as many copies of the
Registration Statement, each Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto (in each case
including all exhibits, except that ATC shall not be obligated to
furnish any such selling holder more than two copies of such exhibits
other than incorporation documents), as such persons may reasonably
request, together with such documents incorporated by reference in such
Registration Statement or Prospectus, and such other documents as such
selling holder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities covered by
such registration statement; ATC consents to the use of each Prospectus
or any supplement thereto by each selling holder of Registrable
Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by each
Registration Statement or any amendment thereto;
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(viii) prior to any public offering of Registrable Securities,
use its reasonable business efforts to register or qualify or cooperate
with the selling holders of Registrable Securities, the underwriters,
if any, and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as
any selling holder or underwriter reasonably requests in writing and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the Registration Statement; provided, however, that ATC will not be
required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject
it to general service of process or general taxation in any such
jurisdiction where it is not then so subject;
(ix) cooperate with the selling holders of Registrable
Securities and the underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and
registered in such names as the underwriters may reasonably request at
least two (2) business days prior to any sale of Registrable Securities
to the underwriters;
(x) use its reasonable business efforts to cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary or advisable to enable the sellers
thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities;
(xi) if any event contemplated by paragraph (iii) (F) above
shall exist, prepare and furnish to such holders a post-effective
amendment to the Registration Statement or supplement to the Prospectus
or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, the Prospectus will not contain an 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 light of the circumstances under which they were made, not
misleading;
(xii) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange or
other trading market on which securities of the same class are then
listed or traded or, if the Registrable Securities are not then listed
on a securities exchange, and if the NASD is reasonably likely to
permit the inclusion of the Registrable Securities on NASDAQ, use its
reasonable business efforts to facilitate the inclusion of the
Registrable Securities on NASDAQ;
(xiii) not later than the effective date of the Registration
Statement, provide a CUSIP number for all Registrable Securities and
provide the applicable transfer agent or agents with printed
certificates or instruments for the Registrable Securities which are in
a form eligible for deposit with Depository Trust Company or other
transferee and otherwise meeting the requirements of any securities
exchange or other trading market on which such Registrable Securities
are listed or traded;
(xiv) pay all Registration Expenses in connection with any
registration pursuant to the provisions of this Section. Without
limiting the generality of the foregoing, in connection with each
Registration Statement required hereunder, ATC will reimburse the
holders of Registrable Securities being registered pursuant to such
Registration Statement for the reasonable fees and disbursements of not
more than one counsel (or more than one counsel if a conflict exists
among such selling holders in the exercise of the reasonable judgment
of counsel for the selling holders and counsel for ATC, provided that
such selling holders shall use their reasonable business efforts to
minimize conflicts of counsel) chosen by the holders of not less than a
majority in value (based on the proposed public offering price) of the
Registrable Securities being sold;
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(xv) enter into agreements (including underwriting agreements)
and take all other appropriate actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the offer and sale of the Registrable Securities is
an underwritten offering:
(A) make such representations and warranties to
the holders of such Registrable Securities
and the underwriters, if any, in form,
substance and scope, reasonably satisfactory
to such holders and underwriters, as are
customarily made by issuers to underwriters
in primary underwritten offerings;
(B) obtain opinions and updates thereof of
counsel which counsel and opinions to ATC
(in form, scope and substance) shall be
reasonably satisfactory to the underwriters,
if any, and the holders of not less than a
majority in value (based on the proposed
public offering price) of the Registrable
Securities being sold, addressed to each
selling holder and the underwriters, if any,
covering the matters customarily covered in
opinions requested in underwritten offerings
and such other matters as may be reasonably
requested by such holders and underwriters;
(C) obtain so-called "cold comfort" letters and
updates thereof from ATC's independent
public accountants addressed to the selling
holders of Registrable Securities and the
underwriters, if any, such letters to be in
customary form and covering matters of the
type customarily covered in "cold comfort"
letters to underwriters in connection with
primary underwritten offerings and such
other matters as may be reasonably requested
by such holders and underwriters;
(D) if an underwriting agreement is entered
into, cause the same to set forth in full
the indemnification provisions and
procedures of Section 3 (or such other
substantially similar provisions and
procedures as the underwriters shall
reasonably request) with respect to all
parties to be indemnified pursuant to said
Section; and
(E) deliver such documents and certificates as
may be reasonably requested by the holders
of not less than a majority in value (based
on the proposed public offering price) of
the Registrable Securities being sold or the
underwriters, if any, to evidence compliance
with the provisions of this Section and with
any customary conditions contained in the
underwriting agreement or other agreement
entered into by ATC.
The requirements of subparagraphs (B), (C) and (D) of this
paragraph (xv) shall be complied with at the effectiveness of
such Registration Statement, each closing under any
underwriting or similar agreement as and to the extent
required thereunder and from time to time as may reasonably be
requested by a majority in value (based on the proposed public
offering price) of Registrable Securities being sold pursuant
to such Registration Statement, all in a manner consistent
with customary industry practice;
(xvi) make available to a representative of the holders of not
less than a majority in value (based on the proposed public offering
price) of the Registrable Securities, any underwriter participating in
any disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such holders or underwriter, all
financial, corporate and other records and documents of ATC, and cause
ATC's officers, directors and employees to supply all information
reasonably requested by any such representatives, underwriter, attorney
or accountant in connection with the registration, with respect to each
at such time or times as the person requesting such
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information shall reasonably determine; provided, however, that any
records, information or documents that are designated by ATC in writing
as confidential shall be kept confidential by such persons unless
disclosure of such records, information or documents is required by
court or administrative order or applicable law or otherwise becomes
public without breach of the provisions of this paragraph;
(xvii) otherwise use its reasonable business efforts to comply
with the Securities Act, the Exchange Act, all applicable rules and
regulations of the Commission and all applicable state blue sky and
other securities laws, rules and regulations, and make generally
available to its security holders, earnings statements satisfying the
provisions of Section 11(a) of the Securities Act, no later than thirty
(30) days after the end of any 12-month period (or ninety (90) days if
the end of such 12-month period coincides with the end of a fiscal
quarter or fiscal year, respectively) of ATC (A) commencing at the end
of any month in which Registrable Securities are sold to underwriters
in an underwritten offering, or, if not sold to underwriters in such an
offering, (B) beginning with the first month commencing after the
effective date of the Registration Statement, which statements shall
cover said 12-month periods;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter" that is required to be retained in accordance with the
rules and regulations of the NASD);
(xix) promptly prior to the filing of any document which is to
be incorporated by reference into the Registration Statement or the
Prospectus (after the initial filing of the Registration Statement)
provide copies of such document to the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel,
make ATC's representatives available for discussion of such document
with such persons and make such changes in such document prior to the
filing thereof as any such persons may reasonably request; and
(xx) cooperate and assist in any filings required to be made
with the FCC, including without limitation the obtaining of any
consents of the FCC required in connection with any change in control
of ATC.
(d) Restrictions on Registration. Anything in Section 1 to the contrary
notwithstanding, ATC shall not be required to register Registrable Securities on
behalf of any Stockholder to the following extent and subject to the following
conditions: in the case of any registration initially proposed to be filed
solely on behalf of ATC if, in the opinion of the managing underwriters of the
proposed public offering (a copy of which opinion shall have been furnished to
any Stockholder requesting registration (or each such holder if ATC has elected
not to notify the holders of Registrable Securities pursuant to the provisions
of Section 1(a) because it is not required to include any Registrable Securities
in such registration pursuant to the provisions of this Section)), such
registration (or such portion thereof as may be specified in such opinion) would
adversely affect the proposed public offering price or the plan of distribution
contemplated by the proposed ATC offering, in which event ATC shall (unless in
the opinion of such managing underwriters (a copy of which shall be similarly
furnished) to do so would materially and adversely affect the proposed public
offering price or such plan of distribution)) cause such Registration Statement
to remain in effect and to be phrased in such a manner so that the Stockholders
requesting registration thereunder may, during a period commencing not less than
sixty (60) days or more than ninety (90) days (or such other period as such
managing underwriters may approve as not so adversely affecting the proposed
public offering price or such plan of distribution) after the closing of the
sale to the underwriters pursuant to the original distribution thereunder, offer
and sell under such Registration Statement the Registrable Securities referred
to in the request of registration pursuant to this Section 1.
(e) Additional Restrictions on Registration. Anything in this Agreement
to the contrary notwithstanding, ATC shall not be required to file a
registration statement requested pursuant to this Section
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1 if ATC has furnished, to the Stockholders requesting a registration statement
to be filed, a certificate signed by the Chief Executive Officer or the Chief
Financial Officer of ATC stating that in the good faith judgment of the signer
of such certificate the filing of a registration statement would require the
disclosure of material information that ATC has a bona fide business purpose for
preserving as confidential and that is not then otherwise required to be
disclosed; provided, however, that ATC's obligation to use its reasonable
business efforts to effect a registration pursuant to this Section 1 may not be
deferred pursuant to this paragraph (e) for more than ninety (90) days from the
date of receipt of a written request from such Stockholders, and provided
further, however, that ATC shall not utilize this right more than once during
any twelve (12) month period unless the Stockholders requesting such
registration have been afforded a reasonable period (not less than ninety (90)
days) during such twelve (12) month period to effect such registration.
2. Conditions to Registration.
Each Stockholder's right to have Registrable Securities included in any
Registration Statement filed by ATC in accordance with the provisions of Section
1 shall be subject to the following conditions:
(a) The holders on whose behalf such Registrable Securities
are to be included shall be required to furnish ATC in a timely manner
with all information required by the applicable rules and regulations
of the Commission concerning the proposed method of sale or other
disposition of such Registrable Securities, the identity of and
compensation to be paid to any proposed underwriters to be employed in
connection therewith, and such other information as may be reasonably
requested by ATC or its counsel properly to prepare and file such
Registration Statement in accordance with applicable provisions of the
Securities Act;
(b) If any such holder desires to sell and distribute
Registrable Securities over a period of time, or from time to time, at
then prevailing market prices, then any such holder shall execute and
deliver to ATC such written undertakings as ATC and its counsel may
reasonably request in order to assure full compliance with applicable
provisions of the Securities Act and the Exchange Act;
(c) In the case of any underwritten offering on behalf of the
holders of Registrable Securities pursuant to the provisions of Section
1(b), the managing underwriters shall be subject to the approval of
ATC, such approval not to be unreasonably withheld, delayed or
conditioned;
(d) In the case of any registration requested pursuant to the
provisions of Section 1(a), the offering price for any Registrable
Securities to be so registered shall be no less than for any securities
of the same class then to be registered for sale for the account of ATC
or other security holders, unless such Registrable Securities are to be
offered from time to time based on the prevailing market price;
(e) Upon receipt of any notice from ATC of the existence of
any event of the nature referred to in paragraph (iii) of Section 1(c),
such holder will forthwith discontinue disposition of Registrable
Securities until such holders receipt of the copies of the supplemented
or amended Prospectus contemplated by such paragraph, or until it is
advised in writing by ATC that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the Prospectus, and, if
so directed by ATC, such holder will deliver to ATC (at its expense)
all copies, other than permanent file copies then in such holder's
possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice; and
(f) In the event any filing with or consent of the FCC is
required, cooperate and assist in any such filings, including without
limitation providing all information required in obtaining any consents
of the FCC required in connection with any change in control of ATC.
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3. Indemnification.
(a) Indemnification by ATC. In the event of the registration of any
Registrable Securities under the Securities Act pursuant to the provisions
hereof, ATC will, to the extent permitted by Applicable Law, indemnify and hold
harmless each Stockholder on whose behalf such Registrable Securities shall have
been registered, its partners, trustees, advisory committee members, directors,
officers, employees, representatives and agents, each underwriter, broker and
dealer, if any, who participates in the offering or sale of such Registrable
Securities, and each other Person, if any, who controls such Stockholder or any
such underwriter, broker or dealer within the meaning of the Securities Act or
the Exchange Act (each such person being hereinafter sometimes referred to as an
"indemnified person"), from and against any Claims, joint or several, to which
such indemnified person may become subject, including without limitation under
the Securities Act, the Exchange Act or any state securities or blue sky law,
insofar as such Claims arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained or incorporated by
reference in any Registration Statement or Prospectus or any amendment or
supplement thereto or in any preliminary prospectus, or any document
incorporated by reference therein, or arise out of or 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, in light of the circumstances under
which they were made, not misleading, and will reimburse each such indemnified
person for any legal or any other expenses reasonably incurred by such
indemnified person in connection with investigating or defending, settling or
satisfying any such Claim; provided, however, that ATC will not be liable in any
such case to the extent that any such Claim arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made or incorporated by reference in the Registration Statement, Prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to ATC by such indemnified person specifically stating
that it is for use in preparation thereof. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
indemnified person and shall survive the transfer of such Registrable Securities
by such Stockholder
(b) Indemnification by Holders of Registrable Securities. In the event
of the registration of any Registrable Securities under the Securities Act
pursuant to the provisions hereof, each Stockholder on whose behalf such
Registrable Securities shall have been registered will, to the extent permitted
by Applicable Law, severally but not jointly, indemnify and hold harmless, ATC,
each director of ATC, each officer of ATC who signs the registration statement,
each underwriter, broker and dealer, if any, who participates in the offering
and sale of such Registrable Securities and each other Person, if any, who
controls ATC or any such underwriter, broker or dealer within the meaning of the
Securities Act or the Exchange Act (each such person including without
limitation ATC being hereinafter sometimes referred to as an "indemnified
person"), against any Claims, joint or several, to which such indemnified person
may become subject, including without limitation under the Securities Act, the
Exchange Act or any state securities or blue sky law, insofar as such Claims
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained or incorporated by reference in any Registration
Statement or Prospectus or any amendment or supplement thereto or any document
incorporated by reference therein, 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, in light of the
circumstances under which they were made, not misleading, provided that such
untrue statement or alleged untrue statement or omission or alleged omission has
been made or incorporated therein in reliance upon and in conformity with
written information furnished to ATC by such Stockholder specifically stating
that it is for use in preparation thereof, and will reimburse each such
indemnified person for any legal or any other expenses reasonably incurred by
ATC or such indemnified person in connection with investigating or defending,
settling or satisfying any such Claim. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such
indemnified person and shall survive the transfer of such Registrable Securities
by such Stockholder. In no event shall the liability of any such Stockholder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Stockholder upon the sale of the Registrable Securities giving rise to
such indemnification obligation.
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(c) Procedure. Promptly after receipt by an indemnified party of notice
of the commencement of any action (including any governmental investigation or
inquiry), such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to such 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 pursuant to the provisions of this Section
and then only to the extent such indemnifying party has been prejudiced, or
otherwise adversely affected thereby and in no event shall such failure relieve
the indemnifying party from any other liability which it may have to the
indemnified party. In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and to the extent that it
may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party, the indemnifying party shall not, except as hereinafter
provided, be responsible for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof, other than
reasonable cost of investigation. No indemnifying party will consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such Claim.
Such indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be the expense of such indemnified party, unless
(i) the indemnifying party has agreed to pay such fees and expenses, (ii) the
indemnifying party shall have failed to assume the defense of such action or
proceeding or has failed to employ counsel reasonably satisfactory to such
indemnified party in any such action or proceeding, or (iii) the named parties
to any such action or proceeding (including any impleaded parties) include both
such indemnified party and the indemnifying party, and such indemnified party
shall have been advised in writing by counsel that representation of both
parties by the same counsel would be inappropriate due to actual or potential
material differing interests between them (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys at any time for such indemnified party and any other
indemnified parties, which firm shall be designated in writing by such
indemnified parties). The indemnifying party shall not be liable for any
settlement of any such action or proceeding effected without its written
consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the indemnifying
party agrees to indemnify and hold harmless such indemnified parties from and
against any loss or liability by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this Section
or in Section 4 is unavailable, because prohibited or restricted by Applicable
Law, to a party that would have been an indemnified party under either such
Section in respect of any Claims referred to therein, then each party that would
have been an indemnifying party thereunder shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such Claims in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and such
indemnified party on the other in connection with the statement or omission
which resulted in such Claims, as well as any other relevant equitable
considerations. 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 indemnifying party or such indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the provisions of
this Section, a holder of Registrable Securities shall not, as an indemnified
party, be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by such indemnified party
or its Affiliates and distributed to the public were offered to the public
exceeds the amount of any damages
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which such indemnified party or its Affiliates have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. ATC and each holder of Registrable Securities agrees that it would not
be just and equitable if contribution pursuant to this Section were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section. The
amount paid or payable by an indemnified party as a result of the Claims
referred to above in this Section or Section 4 shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim (which shall be limited as
provided in Section 3(c) if the indemnifying party has assumed the defense of
any such action in accordance with the provisions thereof). The obligations of
each Stockholder under this Section 3(d) are several and not joint.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Indemnification or, if appropriate, contribution, similar to that
specified in the preceding provisions of this Section (with appropriate
modifications) shall be given by ATC and each seller of Registrable Securities
with respect to any required registration or other qualification of Registrable
Securities under any Applicable Law other than the Securities Act.
In the event of any underwritten offering of Registrable Securities
under the Securities Act pursuant to the provisions of Section 1, ATC and each
Stockholder on whose behalf Registrable Securities shall have been registered
agree to enter into an underwriting agreement, in standard form, with the
underwriters, which underwriting agreement may contain additional provisions
with respect to indemnification and contribution in lieu of the provisions of
this Section.
4. Exchange Act Registration.
ATC covenants and agrees that, at its expense, until such time as the
Stockholders no longer hold any Registrable Securities:
(a) it will, if required by law, maintain a registration
statement (containing such information and documents as the Commission
shall specify) with respect to the Common Stock of ATC under Section
12(b) or 12(g) of the Exchange Act effective and will file on time such
information, documents and reports as the Commission may require or
prescribe for companies whose stock has been registered pursuant to
said Section 12(b) or 12(g);
(b) it will, if a registration statement with respect to the
Common Stock of ATC under Section 12(b) or Section 12(g) is effective,
upon the request of any Stockholder, make whatever other filings with
the Commission or otherwise make generally available to the public such
financial and other information as any Stockholder may deem necessary
or advisable in order to enable him to be permitted to sell shares of
Common Stock pursuant to the provisions of Rule 144 promulgated under
the Securities Act (or any successor rule or regulation thereto or any
statute hereafter adopted to replace or to establish the exemption that
is now covered by said Rule 144);
(c) it will, if not subject to Section 13 to 15(d) of the
Exchange Act, upon the request of any Significant Stockholder made on
or after December 31, 1998, make publicly available the information
specified in subparagraph (c)(2) of said Rule 144, and will take such
further action as any Stockholder may reasonably request, all to the
extent required from time to time to enable such Stockholder to sell
Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by said Rule 144 (or
any successor rule or regulation to either thereof or any statute
hereafter adopted to replace or to establish the exemption that is now
covered by said Rule 144); and
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(d) it will, if not subject to Section 13 to 15(d) of the
Exchange Act, upon the request of any Stockholder agree to furnish to a
prospective purchaser (subject to the execution by it of a
confidentiality agreement in form, scope and substance reasonably
satisfactory to ATC) the information specified in subparagraph (d)(4)
of Rule 144A promulgated under the Securities Act (or any successor
rule or regulation thereto or any statute hereafter adopted to replace
or to establish the exemption that is now covered by said Rule 144A),
and will take such further action as any Stockholder may reasonably
request, all to the extent required from time to time to enable such
Stockholder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by
said Rule 144A (or any successor rule or regulation thereto or any
statute hereafter adopted to replace or to establish the exemption that
is now covered by said Rule 144A); and
(e) upon the request of any Stockholder, it will deliver to
such Stockholder a written statement as to whether it has complied with
the requirements of this Section.
ATC represents and warrants that any such registration statement or any
information, documents or report filed with the Commission in connection
therewith or any information so made public shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading. ATC
shall, to the extent permitted by Applicable Law, indemnify and hold harmless
(or to the extent the same is not enforceable, make contribution to) the
Stockholders, their partners, trustees, advisory committee members, officers,
directors, employees, representatives and agents, each broker, dealer or
underwriter (within the meaning of the Securities Act) acting for any
Stockholder in connection with any offering or sale by such Stockholder of
Registrable Securities or any person, firm or corporation controlling (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) such Stockholder or any such broker, dealer or underwriter from and against
any and all Claims arising out of or resulting from any breach of the foregoing
representation or warranty, all on terms and conditions comparable to those set
forth in Section 3; provided, however, that ATC shall be given written notice
and an opportunity to participate in, and, to the extent that it may wish, to
assume on terms and conditions comparable to those set forth in Section 3, the
defense thereof.
5. Termination of Registration Obligations.
The obligations of ATC to any Stockholder with respect to its rights of
registration provided for in Section 1:
(a) shall continue until such time as ▇▇▇▇▇▇▇▇ & Worcester
LLP, or other counsel for ATC knowledgeable in securities law matters
and reasonably acceptable to such Stockholder has delivered a written
opinion to ATC and such Stockholder to the effect that either (i) such
Stockholder has no further obligation to comply with the registration
requirements of the Securities Act or to deliver a prospectus meeting
the requirements of Section 10(a)(3) of the Securities Act in
connection with further sales by such Stockholder of Registrable
Securities or (ii) such Stockholder is able to sell all of the
Registrable Securities owned by him pursuant to the provisions of Rule
144 under the Securities Act in a three-month period; and
(b) shall not apply to any proposed sales or other
dispositions or offers therefor of any Registrable Securities with
respect to which ▇▇▇▇▇▇▇▇ & Worcester LLP, or other counsel for ATC
knowledgeable in securities law matters and reasonably acceptable to
such Stockholder has delivered a written opinion to ATC and the
Stockholder proposing to make such offer, sale or other disposition to
the effect that such Stockholder has no obligation to comply with the
registration requirements of the Securities Act or to deliver a
prospectus meeting the requirements of Section 10(a)(3) of the
Securities Act.
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Any such opinion (a copy of which shall be addressed to such
Stockholder) shall be reasonably satisfactory (in the case of such opinion as to
form, scope and substance) to such Stockholder.
ATC shall, to the extent permitted by Applicable Law, indemnify and
hold harmless each Stockholder, its partners, trustees, advisory committee
members, officers, directors, employees, representatives and agents and each
person, if any, who controls such Stockholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
Claims to which such Stockholder, or such partners, trustees, advisory committee
members, officers, directors, employees, representatives and agents or
controlling persons may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such Claims arise out of or are based upon the
failure to register the Registrable Securities because of the invocation by ATC
of the provisions of this Section under the Securities Act, all on terms and
conditions comparable to those set forth in Section 3; provided, however, that
ATC shall be given written notice and an opportunity to participate in, and to
the extent that it may wish, to assume, on terms and conditions comparable to
those set forth in Section 3, the defense thereof.
The indemnification and contributions provisions of Sections 3 and 4
and this Section, and the obligations of each Stockholder pursuant to the
provisions of Section 9, shall survive any termination of ATC's obligations
pursuant to this Section.
6. Registration Rights of Others.
ATC represents and warrants that it has not previously entered into any
agreement with respect to its securities granting any registration rights to any
Person.
7. Mergers, etc.
In addition to any other restrictions on mergers, consolidations and
reorganizations contained in the Restated Certificate of Incorporation, by-laws
or agreements of ATC, ATC covenants and agrees that it shall not, directly or
indirectly, enter into any merger, consolidation, sale of all or substantially
all of its assets or business, liquidation, dissolution or reorganization in
which ATC shall not be the surviving corporation unless the surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in a writing to assume all of the obligations of ATC under this Agreement, and
for that purpose references hereunder to "Registrable Securities" shall be
deemed to include the securities which such holders would be entitled to receive
in exchange for Registrable Securities pursuant to any such merger,
consolidation, sale of all or substantially all of its assets or business,
liquidation, dissolution or reorganization.
8. Annual and Quarterly Reports; Other Information.
ATC will deliver to each Stockholder so long as such Stockholder holds
any Registrable Securities:
(a) as soon as practicable after the end of each fiscal year
and each quarter, audited annual and unaudited consolidated quarterly
financial statements of ATC, including a consolidated balance sheet, a
consolidated statement of operations, and a consolidated statement of
cash flow, for such year or quarter, all prepared in accordance with
generally accepted accounting principles;
(b) as soon as available, copies of all documents filed with
the Commission; and
(c) such other financial and other information as may, from
time to time, be reasonably requested by any Significant Stockholder.
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9. Lock-Up Agreement.
Each Stockholder (other than any Stockholder who is not a director and
owns, at such time, 2% or less of all of the Common Stock) agrees that, if
required in connection with the contemplated offering by the managing
underwriter, (a) it and the Restricted Securities shall be bound by any
"lock-up" or other agreement between ATC and any underwriter of Common Stock (or
other equity securities of ATC) which may be entered into in connection with
each underwritten public offering of the Common Stock (or other equity
securities of ATC) so long as the "lock-up" period does not exceed ninety (90)
days (or such longer period (not exceeding one hundred and eighty (180) days) in
connection with the initial underwritten public offering of Class A Common Stock
as the managing underwriters shall have requested) following the commencement of
the public offering, and (b) it will execute such agreements or other documents
as may be reasonably requested by any such underwriter in order to evidence its
agreement set forth in this Section.
10. Withdrawals.
Any Stockholder may at any time withdraw any request made pursuant to
Section 1 for registration of its Registrable Securities; provided, however,
that to the extent that such withdrawal or withdrawals result in a termination
of any offering proposed to be made pursuant to Section 1, ATC shall be deemed
to have consummated such offering for purposes of Section 1 unless such
Stockholder(s) agree to reimburse ATC for all Registration Expenses incurred by
ATC in connection with such terminated offering. Notwithstanding anything in the
foregoing provisions of this Section to the contrary, the provisions of this
Section shall not be applicable in the event that any such withdrawal or
withdrawals resulting in such termination is or are effected on account of (a)
ATC's failure to disclose any material fact required to be disclosed in the
registration statement or any prospectus relating to such offering or (b) any
material adverse change in ATC, its business, assets or condition (financial or
other).
11. Definitions.
As used herein, unless the context otherwise requires, the terms (or
any variant in the form thereof) set forth in this Agreement shall have the
respective meanings so set forth. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa, and the reference to
any gender shall be deemed to include all genders. Unless otherwise defined or
the context otherwise clearly requires, terms for which meanings are provided in
this Agreement shall have such meanings when used in each agreement, notice,
certificate, communication, opinion or other document executed or required to be
executed pursuant hereto or thereto or otherwise delivered, from time to time,
pursuant hereto or thereto.
"Affiliate" of any Person shall mean any Person which, directly or
indirectly, owns or controls, is under common ownership or control with, or is
owned or controlled by, such Person. A Person shall be deemed to be "controlled
by" any other Person if such other Person possesses, directly or indirectly,
power to direct or cause the direction of the management or policies of such
Person or the disposition of its assets or property, whether by stock, equity or
other ownership, contract, arrangement or understanding, or otherwise.
"Agreement" is defined in the first paragraph.
"Applicable Law" shall mean any Law of any Authority, whether domestic
or foreign, including without limitation all federal and state Laws, to which
the Person in question is subject or by which it or any of its business or
operations is subject or any of its property is bound.
"ARS" shall mean American Radio Systems Corporation, a Delaware
corporation.
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"ARS Agreement" shall mean the Registration Rights Agreement, dated as
of November 1, 1993 by and among ARS and certain of the Stockholders named
therein, as amended and restated by the Original Registration Rights Agreement.
"ARS Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of September 19, 1997, as amended and restated as of December 18, 1997,
by and among ARS, CBS Corporation (formerly, Westinghouse Electric Corporation)
and R Acquisition Corp.
"ATC" is defined in the first paragraph.
"ATC Stock Purchase Agreement" shall mean the Stock Purchase Agreement,
dated as of January 8, 1998, by and between ATC and certain of the Stockholders
named therein.
"Authority" shall mean any governmental or quasi-governmental
authority, whether executive, legislative, judicial, administrative or other, or
any combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or
quasi-governmental agency, arbitrator, board, body, branch, bureau or comparable
agency or Entity, commission, corporation, court, department, instrumentality,
mediator, panel, system or other political unit or subdivision or other Entity
of any of the foregoing, whether domestic or foreign.
"Claims" shall mean, with respect to any Person, any and all debts,
liabilities, obligations, losses, damages, deficiencies, assessments and
penalties of or against such Person, together with all Legal Actions, pending or
threatened, claims and judgments of whatever kind and nature relating thereto,
and all fees, costs, expenses and disbursements (including without limitation
reasonable attorneys' and other legal fees, costs and expenses) relating to any
of the foregoing.
"Common Stock", "Class A Common", "Class B Common" or "Class C Common",
shall mean those respective securities described in the Restated Certificate of
Incorporation of ATC.
"Commission" shall mean the Securities and Exchange Commission or any
successor Authority.
"Cox" shall mean Cox Telecom Towers, Inc., a Delaware corporation, and
shall include any Affiliate of Cox to whom it shall have transferred Registrable
Securities in a transaction not involving a registration of such securities
under the Securities Act.
"CSFB Agreement" shall mean the registration rights agreement, dated as
of February 4, 1999, by and between ATC and Credit Suisse First Boston, as from
time to time amended in accordance with its terms.
"Entity" shall mean any corporation, firm, unincorporated organization,
association, partnership, a trust (inter vivos or testamentary), an estate of a
deceased, insane or incompetent individual, business trust, joint stock company,
joint venture or other organization, entity or business, whether acting in an
individual, fiduciary or other capacity, or any Authority.
"Equity Agreement" shall mean any one of (i) the ARS Agreement, (ii)
the ATC Stock Purchase Agreement; (iii) the Gearon Agreement, (iv) the ARS
Merger Agreement, and (v) any other agreements approved from time to time by
Board of Directors of ATC pursuant to which Common Stock of ATC may be issued.
"Equity Agreements" shall mean all of the foregoing agreements.
"Event" shall mean the existence or occurrence of any act, action,
activity, circumstances, condition, event, fact, failure to act, omission,
incident or practice, or any set or combination of any of the foregoing.
"Exchange Act" shall mean the Securities Exchange Act of 1934, and the
rules and regulations of the Commission thereunder, all as from time to time in
effect, or any successor law, rules or regulations, and
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any reference to any statutory or regulatory provision shall be deemed to be a
reference to any successor statutory or regulatory provision.
"Excluded Offering" shall mean (a) an offering relating solely to
dividend reinvestment plans or stock option or other employee benefit plans, (b)
any merger, consolidation or acquisition, (c) any exchange or tender offer,
whether with existing security holders of ATC or any other Person, or (d) a firm
underwritten offering relating solely to convertible securities or units
consisting of securities senior to Common Stock and warrants, options and rights
to acquire Common Stock in which the managing underwriters shall have objected
to the inclusion of any Registrable Securities.
"FCC" shall mean the Federal Communications Commission or any successor
Authority.
"Gearon Agreement" shall mean the Agreement and Plan of Merger, dated
as of November 21, 1997, by and among ATC, American Tower Systems, Inc. (now
known as American Towers, Inc.), Gearon & Co., Inc. and J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
"Gearon Stockholders" shall mean the parties who received ATC Class A
Common Stock in exchange for their capital stock in Gearon & Co., Inc. pursuant
to terms and provisions of the Gearon Agreement. All registration decisions of
the Gearon Stockholders under this Agreement shall be made by the holders of not
less than a majority in value (based on the proposed public offering) of the
Registrable Securities held by such Gearon Stockholders.
"Law" shall mean any (a) administrative, judicial, legislative or other
action, code, consent decree, constitution, decree, directive, enactment,
finding, law, injunction, interpretation, judgment, order, ordinance, policy
statement, proclamation, promulgation, regulation, requirement, rule, rule of
law, rule of public policy, settlement agreement, statute, or writ of any
Authority, domestic or foreign; (b) the common law, or other legal precedent; or
(c) arbitrator's, mediator's or referee's award, decision, finding or
recommendation.
"Legal Action" shall mean, with respect to any Person, any and all
litigation or legal or other actions, arbitrations, counterclaims,
investigations, proceedings, requests for material information by or pursuant to
the order of any Authority or suits, at law or in arbitration, equity or
admiralty, whether or not purported to be brought on behalf of such Person,
affecting such Person or any of such Person's business, property or assets.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ" shall mean the automatic quotation system of NASD.
"Original Registration Rights Agreement" is defined in the first
Whereas clause.
"Person" shall mean any natural individual or any Entity.
"Prospectus" shall mean each prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including each preliminary prospectus and
post-effective amendments and all material incorporated by reference in such
prospectus.
"Registrable Securities" shall mean (a) all shares of Class A Common
Stock acquired by any of the Stockholders (i) pursuant to any of the Equity
Agreements, or (ii) directly or indirectly through one or more such conversions
or exchanges, upon the exercise of conversion or exchange provisions set forth
in other securities of ATC issued pursuant to the provisions of any of the
Equity Agreements, or pursuant to the redemption or repurchase of any such
securities, and (b) all shares of Common Stock of whatever series or class or
other equity securities of ATC derived from the Registrable Securities, whether
as a result of
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merger, consolidation, stock split, stock dividend, stock distribution, stock
combination, recapitalization or similar event.
"Registration Expenses" shall mean all (or where appropriate any one or
more) of the following:
(a) all registration, filing and listing fees;
(b) fees and expenses of compliance with securities or blue
sky laws (including without limitation reasonable fees and
disbursements of counsel for the underwriters or selling holders in
connection with blue sky and state securities qualifications of the
Registrable Securities under the laws of such jurisdictions as the
managing underwriters or the holders of not less than a majority in
value (based on the proposed public offering price) of the Registrable
Securities being sold may designate);
(c) printing (including without limitation expenses of
printing or engraving certificates for the Registrable Securities in a
form eligible for deposit with Depositary Trust Company and otherwise
meeting the requirements of any securities exchange on which they are
listed and of printing Prospectuses), word processing, messenger,
telephone and delivery expenses;
(d) fees and disbursements of counsel for ATC, and reasonable
fees and disbursements of counsel for the underwriters and for the
selling holders of the Registrable Securities in accordance with the
provisions of Section 1(c)(xiv) (subject to any provisions to the
contrary in this Agreement);
(e) fees and disbursements of all independent public
accountants of ATC (including without limitation the expenses of any
annual or special audit and "cold comfort" letters required by the
provisions of this Agreement);
(f) fees and disbursements of underwriters (excluding
discounts, commissions or fees of underwriters), selling brokers,
dealer managers or similar securities industry professionals relating
to the distribution of the Registrable Securities or legal expenses of
any Person other than ATC, the underwriters and the selling holders;
(g) securities act liability insurance if ATC so desires or if
the underwriters or the holders of not less than a majority in value
(based on the proposed public offering price) of the Registrable
Securities being sold so require;
(h) fees and expenses of other Persons, including any experts,
retained by ATC;
(i) fees and expenses incurred in connection with the listing
of the Registrable Securities on each securities exchange on which
securities of the same class are then listed;
(j) fees and expenses associated with any NASD filing required
to be made in connection with any Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained in
accordance with the rules and regulations of the NASD;
(k) ATC's internal expenses (including without limitation all
salaries and expenses of its officers and employees performing legal or
accounting duties); and
(l) all other costs and expenses normally associated with the
issuance and sale of newly issued public securities.
"Registration Statement" shall mean any registration statement of ATC
which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments, including
-17-
post-effective amendments to such registration statement, and supplements to
such Prospectus and all exhibits and all material incorporated by reference in
such registration statement.
"Securities Act" shall mean the Securities Act of 1933, and the rules
and regulations of the Commission thereunder, all as from time to time in
effect, or any successor law, rules or regulations, and any reference to any
statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
"Significant Stockholder" shall mean any Stockholder, or group of
Stockholders acting together, which owns not less than the following percentage
or amount of Common Stock:
(a) if ATC is not then subject to Section 13 or 15(d) of the
Exchange Act, (i) shares of Common Stock with a market value (based on
the proposed public offering price if the Common Stock is not, at the
time, publicly traded) of not less than $25,000,000, or (ii) 15.38% of
the outstanding shares of Common Stock (on a fully diluted basis);
(b) if ATC is then so subject to Section 13 or 15(d) of the
Exchange Act, shares of Common Stock with a market value of not less
than $10,000,000; provided, however, that notwithstanding the
foregoing, in the event ATC is, at the time of any request made
pursuant to the provisions of Section 1(b), eligible to file a
Registration Statement on Form S-3 (or any successor form) with respect
to the proposed disposition of the Registrable Securities with respect
to which such request has been made, and such form is acceptable to the
holders making such request, the minimum market value of the
Registrable Securities shall be not less than $5,000,000; and
(c) J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. so long as he holds not less than
fifty percent (50%) of the shares of Registrable Securities received by
him pursuant to the consummation of the Gearon Agreement and proposes
to register shares of Registrable Securities with a market value of not
less than $10,000,000.
"Stockholders" shall mean those persons who executed this Agreement or
who hereafter become parties to this Agreement by executing a counterpart
hereof, and is further defined in Section 12(a).
"Subsidiary" shall mean, with respect to any Person, any Entity a
majority of the capital stock ordinarily entitled to vote for the election of
directors, or if no such voting stock is outstanding a majority of the equity
interests, of which is owned directly or indirectly by such Person or any
Subsidiary of such Person.
12. Miscellaneous.
(a) Assignment; Successors and Assigns. In the event that ATC shall be
merged with, or consolidated into, any other Entity or in the event that it
shall sell and transfer substantially all of its assets to another Entity, the
terms of this Agreement shall inure to the benefit of, and be assumed by, the
Entity resulting from such merger or consolidation, or to which ATC's assets
shall be sold and transferred. Anything in this Agreement to the contrary
notwithstanding, the term "Stockholders" as used in this Agreement shall be
deemed to include the holders from time to time of any of the Registrable
Securities, whether or not they become parties to this Agreement, except for
holders who have acquired Registrable Securities in connection with an offering
registered under the Securities Act or pursuant to sales made in accordance with
Rule 144 (or any successor rule or regulation or statute in substitution
therefor). The rights to cause ATC to register Registrable Securities pursuant
to Section 1 may be assigned in connection with any transfer or assignment by a
holder of Registrable Securities; provided, however, that (i) such transfer may
otherwise be effected in accordance with applicable securities laws and (ii)
such transfer is effected in compliance with the restrictions on transfer
contained in any agreement between ATC and such holder. ATC's obligations under
this Agreement shall not be assigned, and its duties under this Agreement shall
not be delegated, except as provided in the first sentence of this Section.
Nothing in this Agreement expressed
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or implied is intended to and shall not be construed to confer upon or create in
any Person (other than the parties hereto and their permitted successors and
assigns) any rights or remedies under or by reason of this Agreement, including
without limitation any rights to enforce this Agreement.
(b) Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that the other parties' remedies at law for any breach of
the provisions of this Agreement would be inadequate and agrees that for breach
of such provisions, each such party shall, in addition to such other remedies as
may be available to it at law or in equity or as provided in this Agreement, be
entitled to injunctive relief and to enforce its rights by an action for
specific performance to the extent permitted by Law. Each party hereby waives
any requirement for security or the posting of any bond or other surety in
connection with any temporary or permanent award of injunctive, mandatory or
other equitable relief. Nothing herein contained shall be construed as
prohibiting any party from pursuing any other remedies available to it for such
breach or threatened breach, including without limitation the recovery of
damages.
(c) Expenses. Each party shall pay its own expenses incident to the
negotiation, preparation, performance and enforcement of this Agreement
(including all fees and expenses of its counsel, accountants and other
consultants, advisors and representatives for all activities of such persons
undertaken pursuant to this Agreement), except to the extent otherwise
specifically set forth in this Agreement.
(d) Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements, arrangements, covenants, promises, conditions, understandings,
inducements, representations and negotiations, expressed or implied, oral or
written, among them as to such subject matter.
(e) Waivers; Amendments. Notwithstanding anything in this Agreement to
the contrary, amend ments to and modifications of this Agreement may be made,
required consents and approvals may be granted, compliance with any term,
covenant, agreement, condition or other provision set forth herein may be
omitted or waived, either generally or in a particular instance and either
retroactively or prospectively with, but only with, the written consent of ATC
(to the extent it is entitled to the benefit thereof) and (i) with respect to
the rights of the Stockholders set forth in Section 1(b), including without
limitation the definition of Significant Stockholder (except with respect to
clause (c) of the definition of Significant Stockholder which cannot be amended
or modified without the prior written consent of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., or his
respective successors or assigns), two-thirds (2/3) in interest of the
Stockholders, and (ii) with respect to all other rights and obligations of the
Stockholders, a majority in interest of the Stockholders (to the extent they are
entitled to the benefit thereof or obligated thereby); provided, however, that
(x) in the event any such amendment, modification, consent, approval or waiver
shall be for the benefit of or materially adverse to less than all of the
Stockholders, such amendment, modification, consent, approval or waiver shall
require a majority in interest of those Stockholders who are not so benefitted
or who are so materially adversely affected and (y) ATC may from time to time
amend this Agreement solely to add Stockholders to this Agreement, subject only
to the approval of the Board of Directors in accordance with Section 6.
(f) Notices. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be given
in writing and shall be (a) mailed by first-class or express mail, postage
prepaid, (b) sent by telex, telegram, telecopy or other form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid) written confirmation at substantially the same time as such rapid
transmission, or (c) personally delivered to the receiving party (which if other
than an individual shall be an officer or other responsible party of the
receiving party). All such notices and com munications shall be mailed, sent or
delivered as follows:
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If to American Tower Corporation, at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman of the Boar
and Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Stockholder, at his address as it appears on the stock
records of ATC, and/or to such other person(s), telex or facsimile
number(s) or address(es) as the party to receive any such communication
or notice may have designated by written notice to the other parties.
(g) Severability. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case, except when such reformation and construction
could operate as an undue hardship on either party, or constitute a substantial
deviation from the general intent and purpose of such party as reflected in this
Agreement. The parties shall endeavor in good faith negotiations to replace the
invalid, inoperative, illegal or unenforceable provisions with valid, operative,
legal and enforceable provisions the economic effect of which comes as close as
possible to that of the invalid, inoperative, illegal or unenforceable
provisions.
(h) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all the
parties hereto. In pleading or proving any provision of this Agreement, it shall
not be necessary to produce more than one of such counterparts.
(i) Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(j) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the applicable laws of the
United States of America and the domestic substantive laws of the State of New
York without giving effect to any choice or conflict of laws provision or rule
that would cause the application of domestic substantive laws of any other
jurisdiction.
(k) Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such
agreements, assignments, instruments, other documents and assurances, as any
other party or its counsel reasonably deems necessary or desirable in order to
carry out the terms and conditions of this
-20-
Agreement and the transactions contemplated hereby or to facilitate the
enjoyment of any of the rights created hereby or to be created hereunder.
-21-
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of February 25, 1999.
American Tower Corporation
By:__________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board and
Chief Executive Officer
_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Irrevocable Trust
By:_________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇. Dodge Irrevocable Trust
By:_________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Irrevocable Trust
By:_________________________________
Name:
Title:
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇ ▇. Box
____________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Chase Equity Associates, L.P.
By Chase Capital Partners, General Partner
By:________________________________
Name:
Title:
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Bessemer Trust Company,
Trustees of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
By:__________________________________
Bessemer Trust Company, Trustee of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Trust,
By:__________________________________
Name:
Title:
____________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-23-
____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
____________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 30 Trust
____________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 21 Trust
Bessemer Trust Company, Trustee of
Alden ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 35 Trust
By:_________________________________
Name:
Title:
Katharine and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation
By:_________________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Charitable Remainder Unitrust
dated May 3, 1993
By:__________________________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇:
____________________________________
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
The 1997 Gearon Family Trust
____________________________________
By: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Trustee
____________________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇ ▇▇▇▇▇
-25-
American Tower Corporation Stockholders:
____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
Clear Channel Communications, Inc.
By:_________________________________
Name:
Title:
Chase Manhattan Capital L.P.
By:_________________________________
Name:
Title:
The Spotted Dog Farm, L.P.
By: ________________________________
General Partner
Webbmont Holdings, L.P.
By: ________________________________
General Partner
____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1993 Trust
By:_________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1984 Trust
By:_________________________________
-26-
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 1984 Trust*
By:________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 1984 Trust*
By:________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. 1984 Trust*
By:________________________________
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 1992 Trust*
By:________________________________
HMTF/Omni Partners, L.P.*
By:________________________________
___________________________________
▇▇▇ ▇. ▇▇▇▇▇▇*
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust 1996*
By:________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-27-
___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust 1996*
By:________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
▇▇▇▇ ▇. ▇▇▇▇*
___________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.*
___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇*
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated*
By:_________________________________
* Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated is hereby appointed as agent for this
signatory for purposes of this agreement.
Cox Telecom Towers, Inc.
By:_________________________________
Name:
Title:
TeleCom Towers, Inc.
By:_________________________________
Name:
Title:
-28-