29,374,911 Shares
AMERICAN TOWER CORPORATION
Class A Common Stock, par value $.01 per share
UNDERWRITING AGREEMENT
July 1, 1998
Credit Suisse First Boston Corporation,
BT Alex. Xxxxx Incorporated,
Xxxxxx Brothers Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Bear, Xxxxxxx & Co. Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, and
Xxxxx Xxxxxx, Inc.,
As Representatives of the Several Underwriters (the "Representatives"),
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000.
Dear Sirs:
1. Introductory. American Tower Corporation, formerly known as American
Tower Systems Corporation, a Delaware corporation ("Company"), proposes to issue
and sell 25,500,000 shares of its Class A Common Stock, par value $.01 per share
("Class A Common Stock" or "Securities"), and the stockholders listed in
Schedule A hereto and the stockholders listed in Schedule B hereto
(collectively, "Selling Stockholders") propose severally to sell an aggregate of
3,874,911 outstanding shares of the Securities (such 29,374,911 shares of
Securities being hereinafter referred to as the "Firm Securities"). The Company
also proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 2,361,987 additional shares of its Securities, as set
forth below (such 2,361,987 additional shares being hereinafter referred to as
the "Optional Securities"). The Firm Securities and the Optional Securities are
herein collectively called the "Offered Securities". The Company and the Selling
Stockholders hereby agree with the several Underwriters named in Schedule C
hereto ("Underwriters") as hereinafter set forth.
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-52481) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("Commission") and either (A)
has been declared effective under the Securities Act of 1933 ("Act")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "initial registration statement") has been
declared effective, either (A) an additional registration statement
(the "additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form
on which it is filed and including all information (if any) deemed to
be a part of the initial registration statement as of its Effective
Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration Statement". The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information (if
any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "Additional Registration Statement". The Initial Registration
Statement and the Additional Registration Statement are hereinafter
referred to collectively as the "Registration Statements" and
individually as a "Registration Statement". The form of prospectus
relating to the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under
the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "Prospectus".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
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(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date
of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material respects to
the requirements of the Act and the Rules and Regulations, neither of
such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (in light of
the circumstances under which it was made, in the case of the
Prospectus), and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(iv) Each subsidiary of the Company has been duly incorporated
(or formed, as the case may be) and is an existing corporation (or
limited partnership or limited liability company, as the case may be)
in good standing under the laws of the jurisdiction of its
incorporation or formation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where
failure to so qualify would not, individually or in the aggregate have
a material adverse effect on the Company and its subsidiaries taken as
a whole; all of the issued and outstanding capital stock (or
partnership or other equity interests) of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
(except for any general partnership interest) nonassessable; and,
except for the pledge pursuant to the Credit Agreements (as defined
herein) as disclosed in the Prospectus, the capital stock (and
partnership and other equity interests) of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
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(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; the merger (the "ATC' Merger") of
American Tower Corporation, a Delaware corporation ("ATC") into the
Company as described in the Prospectus has been consummated. The
Offered Securities and all other outstanding shares of capital stock of
the Company have been duly authorized; all outstanding shares of
capital stock of the Company (including the Offered Securities being
sold by the Selling Stockholders) are, and, when the Offered Securities
being sold by the Company have been delivered and paid for in
accordance with this Agreement on each Closing Date (as defined below),
such Offered Securities will have been, validly issued, fully paid and
nonassessable, and conform or will conform to the descriptions thereof
contained in the Prospectus; and the stockholders of the Company do not
and will not have any preemptive rights with respect to any of such
securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Offered Securities.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or under standings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any outstanding
securities of the Company (that will remain outstanding after the
Closing Date) owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Securities, including the Offered Securities, have
been approved for listing, subject in the case of the Offered
Securities being sold by the Company, to notice of issuance, on the New
York Stock Exchange ("NYSE").
(ix) No consent, approval, authorization, order or waiver of,
or filing with, any governmental agency or body or any court is
required to be obtained or made by the Company or any subsidiary of the
Company for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities, except
(i) such as have been obtained and made under the Act and (ii) such as
may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated will not,
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation, order
or policy of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, the Credit Agreements (as defined
herein) or any other agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound, or to which any of the properties of the Company
or any such subsidiary is subject, or the charter or by-laws (or other
constituent document) of the Company or any such subsidiary.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus or as would not,
individually or in the aggregate have a material adverse effect on the
Company or its subsidiaries taken as a whole, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that
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would materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; and except as disclosed in
the Prospectus, the Company and its subsidiaries hold any leased real
or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(xiii) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that might have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xiv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(xv) Neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(xvi) There are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of
their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business, prospects or results of operations of the Company and
its subsidiaries taken as a whole, or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of the sale
of the Offered Securities; and, except as disclosed in the Prospectus,
no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
(xvii) The financial statements included in the Registration
Statements and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries and the other entities named
therein as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and the
schedules included in the Registration Statements present fairly the
information required to be stated therein.
(xviii) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
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(xix) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally represents and warrants
to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on the First Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stock holder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on such Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date.
(ii) All information furnished, or to be furnished, in writing
to the Company by the Selling Stockholder regarding the Selling
Stockholder specifically for use in the Registration Statement is on
the date of this Agreement, and will be on the Closing Date, true and
correct in all material respects and does not on the date of this
Agreement, and will not on the Closing Date, contain any untrue
statement of a material fact or omit any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(iii) The execution, delivery and performance of this
Agreement by such Selling Stockholder, the sale by such Selling
Stockholder of the Offered Securities to be sold by such Selling
Stockholder and the consummation by such Selling Stockholder of the
transactions contemplated by this Agreement will not result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over such
Selling Stockholder or any of its properties, or any agreement or
instrument to which such Selling Stockholder is a party or by which it
is bound or to which any of its properties is subject, or the
constituent documents, if any, of such Selling Stockholder.
(iv) No consent, approval, authorization, order or waiver of,
or filing with, any governmental agency or body or any court is
required to be obtained or made by such Selling Stockholder for the
sale of the Offered Securities to be sold by such Selling Stockholder
or the consummation of the transactions contemplated by the power of
attorneys or related Custody Agreements or this Agreement, except such
as have been obtained and made under the Act.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and each
Selling Stockholder agree, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company and each Selling Stockholder, at a purchase price of $22.50 per
share, that number of Firm Securities (rounded up or down, as determined by
Credit Suisse First Boston Corporation ("CSFBC") in its discretion, in order to
avoid fractions) obtained by multiplying 25,500,000 Firm Securities in the case
of the Company and the number of Firm Securities set forth opposite the name of
such Selling Stockholder in Schedule A hereto, in the case of a Selling
Stockholder, in each case by a fraction the numerator of which is the number of
Firm Securities set forth opposite the name of such Underwriter in Schedule B
hereto and the denominator of which is the total number of Firm Securities.
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Certificates in negotiable form for any Common Stock of the
Company to be sold by Selling Stockholders hereunder have been placed in
custody, for delivery under this Agreement, under custody agreements (the
"Custody Agreements") made with Xxxxxx Trust and Savings Bank, as custodian (the
"Custodian"). Each Selling Stockholder agrees that the shares represented by the
certificates held in custody for the Selling Stockholders under the Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust, or in the case of a corporation or partnership, by the
dissolution or liquidation of such corporation or partnership, or the occurrence
of any other event. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any such corporation or partnership should be
dissolved or liquidated or if any other such event should occur, or if any of
such trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement and the
Custody Agreements as if such death, dissolution, liquidation or other event or
termination had not occurred, regardless of whether or not the Custodian shall
have received notice of such death, dissolution, liquidation or other event or
termination.
The Company and the Custodian will deliver the Firm Securities
to the Representatives for the accounts of the Underwriters, against payment of
the purchase price in Federal (same day) Funds by wire transfer in U.S. Dollars
to an account at a bank acceptable to CSFBC drawn to the order of the Company in
the case of 25,500,000 shares of Firm Securities and to the order of the
Custodian in the case of 3,874,911 shares of Firm Securities, at the office of
Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:30 A.M., New York
time, July 8, 1998 or at such other date and time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "First Closing Date." The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the New York office of Xxxxxx Trust and Savings Bank
at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the
Company from time to time not more than thirty days subsequent to the date of
the Prospectus, the Underwriters may purchase all or less than all of the
Optional Securities at the purchase price per share to be paid for the Firm
Securities. The Company agrees to sell to the Underwriters the number of
Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by CSFBC to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by CSFBC to the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "Optional Closing Date", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "Closing Date"), shall be determined by
CSFBC but shall not be later than seven full business days after written notice
of election to purchase Optional Securities is given. The Company will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment
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of the purchase price therefor in Federal (same day) Funds by wire transfer to
an account at a bank acceptable to CSFBC drawn to the order of the Company, at
the above office of Xxxxxxxx & Xxxxxxxx. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the New York office of Xxxxxx Trust and Savings
Bank at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling
Stockholders. The Company agrees with the several Underwriters and the Selling
Stockholders that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by CSFBC, subpara graph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business
day after the Effective Date of Registration Statement No. 333-52481.
The Company will advise CSFBC promptly of any such filing
pursuant to Rule 424(b).
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of any amendment or supplementation of a Registration
Statement or of the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of a Registration Statement
and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement that will correct such statement or omission or an
amendment that will effect such compliance. Neither CSFBC's consent to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) [reserved]
(e) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of
Registration Statement No. 333-52481 which will satisfy the provisions
of Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the Effective
Date, except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "Availability Date" means the 90th day after
the end of such fourth fiscal quarter.
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(f) The Company will furnish to the Representatives copies of
each Registration Statement (seven of which will be signed, or will be
photocopies of signed ones in the case of Registration Statement No.
333-52481, and will include all exhibits), each related preliminary
prospectus and, so long as delivery of a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case as soon
as available and in such quantities as CSFBC requests. The Company will
pay the expenses of printing and distributing to the Underwriters all
such documents.
(g) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution; provided, that the Company shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process or to subject itself to taxation
generally in any jurisdiction.
(h) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act
of 1934 or mailed to stockholders, and (ii) from time to time, such
other information concerning the Company as CSFBC may reasonably
request.
(i) For a period of 120 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities, or
securities convertible into or exchangeable or exercisable for any
Securities, or disclose the intention to make any such offer, sale,
pledge, disposal or filing, without the prior written consent of CSFBC,
except with respect to private issuances of Securities (or securities
convertible into or exchangeable for Securities) or in connection with
acquisitions, if the holders thereof agree to be bound by the foregoing
120-day restriction to the same extent as the Company, grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Securities pursuant to the exercise of stock
options outstanding on the date hereof or granted pursuant to the terms
of a plan in effect on the date hereof, issuances of Securities
pursuant to any dividend reinvestment plan of the Company or issuances
of Securities upon conversion of Class B Common Stock or Class C Common
Stock.
(j) The Company will apply the proceeds to it from the sale of
the Offered Securities as described in the Prospectus.
The Company and each Selling Stockholder agree with the several
Underwriters that the Company will pay all expenses incident to the performance
of the obligations of the Company and the Selling Stockholders under this
Agreement, and will reimburse the Underwriters (if and to the extent incurred by
them) for any filing fees and other expenses (including fees and disbursements
of counsel) incurred by them in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC designates and
the printing of memoranda relating thereto, for the filing fee of the National
Association of Securities Dealers, Inc. relating to the Offered Securities, for
any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, for any transfer taxes on the
sale by the Selling Stockholders of the Offered Securities to the Underwriters
(the Selling Stockholders being responsible for the payment of any of such
transfer taxes) and for expenses incurred in distributing
9
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group, on or prior to the First Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
Each Selling Stockholder agrees, for a period of 120 days after the
date of the initial public offering of the Offered Securities, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any additional shares of Securities (or securities convertible into or
exchangeable or exercisable for any securities), or disclose the intention to
make any such offer, sale, pledge or disposal, without the prior written consent
of CSFBC, except as otherwise contemplated under those certain "lock-up" letters
delivered in connection herewith by such Selling Stockholder to the Company and
the Representatives.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be purchased
on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders of their obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which shall be on or prior to the date of
this Agreement), of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in
effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regula tions;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
consolidated financial statements of the Company, inquiries of
officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the selected combined financial data
included in the Prospectus for each of the three
years ended December 31, 1997 do not agree with, or
were not properly derived from, the amounts set forth
in each of the constituent companies' selected
financial data included in the Prospectus for those
same periods;
(B) the selected financial data included in
the Prospectus for each of the three years ended
December 31, 1997 do not agree with, or were not
properly derived from, the amounts set forth in the
audited financial statements of the Company for those
same periods or were not determined on a basis
substantially
10
consistent with that of the corresponding amounts in
the audited financial statements included in the
Prospectus;
(C) the unaudited financial statements
included in the Registration Statements do not comply
in form in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited
financial statements for them to be in conformity
with generally accepted accounting principles;
(D) the unaudited consolidated financial
statements for the three month periods ended March
31, 1998 and March 31, 1997 included in the
Prospectus do not agree with the amounts set forth in
the unaudited financial statements for those same
periods or were not determined on a basis
substantially consistent with that of the audited
consolidated financial statements; at the date of the
latest available balance sheet read by such
accountants, or at a subsequent specified date not
more than five days prior to the date of this
Agreement, there was any change in the capital stock
or any increase in short-term debt or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus;
(E) for the period from the closing date of
the latest statement of operations included in the
Prospectus to the closing date of the latest
available statement of operations read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the latest Consolidated Statement of
Operations included in the Prospectus, in
consolidated net revenues, operating income (defined
as net revenues less operating expenses, excluding
depreciation, amortization and corporate expenses) or
in other income and expense, net, or in the total or
per share amounts of consolidated net income; or
(F) the pro forma financial data set forth
in the Prospectus does not comply in form in all
material respects to the applicable accounting
requirements of the Act and the related Rules and
Regulations or the pro forma adjustments have not
been properly applied to the historical amounts in
the compilation of that data; except in all cases set
forth in clauses (D) and (E) above for changes,
increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained or incorporated by reference
in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records of
the Company, its subsidiaries and other entities whose
financial statements are included in the Prospectus subject to
the internal controls of the Company's or such entities'
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and
11
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(b) The Representatives shall have received letters, dated the
date of delivery thereof (which shall be on or prior to the date of
this Agreement), of Xxxxxxxx Xxxxxx Xxxxx LLP, Xxxxxx, Xxx, Xxxx &
Xxxxx, KPMG Peat Marwick LLP and Ernst & Young LLP, in each case
confirming that they are independent public accountants within the
meaning of the Act and the applicable Rules and Regulations thereunder,
and stating in effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations; and
(ii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the entity whose financial
statements they have audited subject to the internal controls
of such entity's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
(c) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of either Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company or any of its subsidiaries which, in the judgment of a
majority in interest of the Underwriters including the Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by Federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Under writers including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
12
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxx & Worcester LLP, counsel for the
Company, to the effect that:
(i) Each of the Company and the subsidiaries listed
on Annex I hereto has been duly incorporated (or formed, as
the case may be) and each of the Company and its subsidiaries
is an existing corporation (or limited partnership or limited
liability company, as the case may be) in good standing under
the laws of the jurisdiction of its incorporation or
formation, with corporate, partnership or limited liability
company power and authority to own its properties and conduct
its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation (or other
entity) in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified would not individually or in the aggregate
have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) Each of the ATC Merger, and the merger of a
wholly-owned subsidiary of CBS Corporation with and into
American Radio Systems Corporation has previously become
effective;
(iii) The Offered Securities delivered on such
Closing Date and all other outstanding shares of all classes
of the capital stock of the Company have been duly authorized
and validly issued, are fully paid and nonassessable and
conform to the descrip tion thereof contained in the
Prospectus under the caption "Description of Capital Stock";
and the stockholders of the Company have no preemptive rights
with respect to the Offered Securities;
(iv) Except as described in the Prospectus, there are
no contracts, agreements or understandings known to such
counsel between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(v) Each of the Credit Agreements, each dated as of
June 16, 1998, among the Company, American Tower Systems
(Delaware), Inc. and American Tower Systems L.P.,
respectively, Toronto Dominion (Texas) Inc., as Administrative
Agent, and the other lenders under each such agreement,
(collectively, the "Credit Agreements") has been duly
authorized, executed and delivered by the Company and its
subsidiaries party thereto and, constitutes a valid and
legally binding obligation of the Company and its subsidiaries
party thereto, as the case may be, enforceable in accordance
with its terms against the Company and its subsidiaries
thereto, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(vi) No consent, approval, authorization, order or
waiver of, or filing with, any governmental agency or body or
any court is required to be obtained or made by the Company
for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered
Securities, except such as have been obtained or made under
the Act or under state securities laws or such as may be
required under the Communications Act of 1934, as amended (the
"Communications Act") (as to which such counsel need express
no opinion);
13
(vii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein or
therein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company, or any subsidiary of the Company or any of
their properties, or, to such counsel's knowledge, any
agreement or instrument to which the Company or any subsidiary
of the Company is a party or by which the Company or any
subsidiary of the Company is bound including, but not limited
to, the Credit Agreements, and the Registration Rights
Agreement, dated as of January 22, 1998, among the Company and
the stockholders named therein, or to which any of the
properties of the Company or any subsidiary of the Company is
subject, or the charter or by-laws or other constituent
document of the Company or any subsidiary of the Company,
except that such counsel need not express any opinion with
respect to the Communications Act or the rules, regulations
and orders of the Federal Communications Commission (the
"FCC") promulgated thereunder;
(viii) Registration Statement No. 333-52481 was
declared effective under the Act as of the date and time
specified in such opinion, Registration Statement No.
333-52481, satisfying the requirements of Rule 462(b), was
filed and became effective under the Act as of the date and
(if determinable) time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the
date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that any
part of a Registration Statement or any amendment thereto, as
of its effective date or as of such Closing Date, contained
any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading; or that the
Prospectus or any amendment or supplement thereto, as of its
issue date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in each Registration Statement
and the Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate in
all material respects and fairly present the information
required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in
either Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in either Registration
Statement or the Prospectus or to be filed as exhibits to
either Registration Statement which are not described and
filed as required; it being understood that such counsel need
express no opinion as to the financial statements and
schedules or other financial data contained in either
Registration Statement or the Prospectus, except that such
counsel need not express any opinion with respect to the
Communications Act or the rules, regulations and orders of the
FCC promulgated thereunder; and
14
(ix) This Agreement has been duly authorized,
executed and delivered by the Company.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Dow, Xxxxxx & Xxxxxxxxx, FCC counsel to the
Company, to the effect that:
(i) No consent, approval, authorization, order or
waiver of, or filing with, the FCC is required under the
Communications Act and the published policies, rules and
regulations of the FCC to be obtained or made by the Company
or any subsidiary of the Company for the consummation of the
transactions described in the Prospectus as necessary to
effectuate the issuance of the Offered Securities to be sold
by the Company, the sale of the Offered Securities by the
Company and the Selling Stockholders, the public offering
thereof by the Underwriters and the execution, delivery and
performance of the Underwriting Agreement (provided that such
counsel shall not be required to undertake any examination of,
or to opine with respect to, the qualifications or ownership
interests of the stockholders of the Company or of any parties
that may purchase securities in connection with such
transaction);
(ii) The execution, delivery and performance of this
Agreement, the issuance of the Offered Securities to be sold
by the Company, the sale of the Offered Securities by the
Company and the Selling Stockholders and the public offering
thereof by the Underwriters, do not and will not violate any
of the terms or provisions of, or constitute a default under
(i) the Communications Act or any FCC regulation, rule, policy
or order, (ii) the FCC licenses held by the Company or any
subsidiary of the Company (provided that such counsel shall
not be required to undertake any examination of, or to opine
with respect to, the qualifications or ownership interests of
the stockholders of the Company or of any parties that may
purchase securities in connection with such transaction);
(iii) To the knowledge of such counsel, there are no
administrative or judicial proceedings pending before, or
threatened by, the FCC with respect to the Company or any
subsidiary of the Company, or any towers owned or operated by
the Company or any subsidiary of the Company which, if
determined adversely, individually or in the aggregate, could
reasonably be expected to have a material adverse effect upon
the Company and its subsidiaries taken on a whole.
(g) The Representatives shall have received an opinion, of
counsel each of the Selling Stockholders as contemplated by and dated
the date of the Power of Attorney and the opinion of such counsel
substantially to the effect that each Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by such Selling
Stockholder on such Closing Date and had full right, power and
authority to sell, assign, transfer and deliver the Offered Securities
to be delivered by such Selling Stockholder on such Closing Date
hereunder; and the several Underwriters have acquired valid and
unencumbered title to the Offered Securities purchased by them from the
Selling Stockholders hereunder.
(h) The Representatives shall have received from Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorpora tion of the Company,
the validity of the Offered Securities delivered on such Closing Date,
the Registration Statements, the Prospectus and other related matters
as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
15
(i) The Representatives shall have received a certificate,
dated such Closing Date, of the Chief Executive Officer of the Company
and the Chief Financial Officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date, that no stop
order suspending the effectiveness of any Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission, that, subsequent to the date of the
most recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate, and
that any additional Registration Statement was filed pursuant to Rule
462(b) under the Act, including payment of the applicable filing fee in
accordance with Rule 111(a); such registration statement satisfied the
requirements of subparagraphs (1) and (3) of Rule 462(b); such
registration statement was filed prior to the time the Prospectus was
printed and distributed; and no document has been prepared or
distributed in reliance on Rule 434 under the Act.
(j) The Representatives shall have received letters, dated
such Closing Date, of Deloitte & Touche LLP, Xxxxxxxx Xxxxxx Xxxxx LLP,
Xxxxxx, Xxx, Xxxx & Xxxxx, KPMG Peat Marwick LLP and Ernst & Young LLP
which meets the requirements of subsections (a) and (b), respectively,
of this Section, except that the specified date referred to in such
subsections will be a date not more than five days prior to such
Closing Date for the purposes of this subsection.
(k) The Securities to be delivered on such Closing Date shall
have been approved for listing on NYSE, subject, in the case of Offered
Securities being sold by the Company, only to official notice of
issuance.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein. The foregoing indemnity agreement
with respect to any untrue statement or omission in the Preliminary Prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Offered Securities
if a copy of the Prospectus (as then amended or supplemented if the Company
shall
16
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of the Offered Securities to such person, and the
Prospectus (as amended or supplemented) would have cured the defect giving rise
to such losses, claims, damages or liabilities.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein; provided, further, that 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 7(b) exceed the lesser of (i)
the proceeds received by such Selling Stockholder from the Underwriters in the
Offering and (ii) that portion of the total losses, claims, damages and
liabilities for which the Underwriters and any controlling persons may be
subject to indemnification hereunder equal to the ratio of the total number of
Offered Securities sold hereunder by such Selling Stockholder as compared to the
total Offered Securities sold hereunder by all Selling Stockholders.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company and each Selling Stockholder against any losses,
claims, damages or liabilities to which the Company or such Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred.
17
(d) Promptly after receipt by an indemnified party under this
Section or Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under subsection (a), (b) or (c) above or Section 9, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under subsection (a), (b) or
(c) above or Section 9. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section or Section 9, as the case may be, for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action.
(e) If the indemnification provided for in this Section or
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above or Section 9, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above or Section 9 (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the
Selling Stockholders and the Underwriters from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the Selling Stockholders and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company, the Selling
Stockholders and the Underwriters shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and no Selling
Stockholder shall be require to contribute any amount in excess of the amount of
the proceeds received by such Selling Stockholder from the Underwriters in the
Offering. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters' and
the Selling
18
Stockholders' obligations in this subsection (e) to contribute are several in
proportion to their respective obligations and not joint.
(f) The obligations of the Company and the Selling
Stockholders under this Section or Section 9 shall be in addition to any
liability which the Company and the Selling Stockholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter or the QIU (as hereinafter defined) within the meaning
of the Act; and the obligations of the Underwriters under this Section shall be
in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each director of
the Company, to each officer of the Company who has signed a Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of the
Offered Securities that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFBC, the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders, except as provided in Section 10 (provided that if
such default occurs with respect to Optional Securities after the First Closing
Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Qualified Independent Underwriter. The Company hereby
confirms that at its request Bear, Xxxxxxx & Co. Inc. has without compensation
acted as "qualified independent underwriter" (in such capacity, the "QIU")
within the meaning of Rule 2720 of the Conduct Rules of the National Association
of Securities Dealers, Inc. in connection with the offering of the Offered
Securities. The Company will indemnify and hold harmless the QIU against any
losses, claims, damages or liabilities, joint or several, to which the QIU may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon the QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder and the Company or any of their respective
19
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company and the
Selling Stockholders shall remain responsible for the expenses to be paid or
reimbursed by them pursuant to Section 5 the respective obligations of the
Company, the Selling Stockholders, and the Underwriters pursuant to Section 7
and the obligations of the Company and the Selling Stockholders pursuant to
Section 9 shall remain in effect, and if any Offered Securities have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(d), the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives, c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group; if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
XX 00000, Attention: Xxxxxx X. Xxxxx or, if sent to the Selling Stockholders or
any of them, will be mailed, delivered or telegraphed and confirmed c/o with
respect to Selling Stockholders listed on Schedule A, Xxxxxx Xxxxx, with respect
to Selling Stockholders listed on Schedule B, Xxxx Xxxxxx, in each case at 000
Xxxxxxxxxx Xxxxxx, Xxxxxx, XX, 00000, provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective personal
representatives and successors and the officers and directors and controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder.
13. Representation. The Representatives will act for the
several Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representatives
jointly or by CSFBC will be binding upon all the Underwriters. Xxxxxx Xxxxx or
Xxxxxx Xxxxxx as attorneys-in-fact, will act for the Selling Stockholders listed
on Schedule A and Xxxx Xxxxxx as attorney-in-fact, will act for the Selling
Stockholders listed on Schedule B, in each case, in connection with such
transactions, and any action under or in respect of this Agreement taken by any
of them will be binding upon all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
20
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to us three of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Stockholders and the several Underwriters in accordance
with its terms.
Very truly yours,
AMERICAN TOWER CORPORATION
By: \s\ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
Each of The Selling Stockholders Listed on
Schedule A Hereto
By: \s\ Xxxxxx X. Xxxxx
Attorney-in-fact
Each of The Selling Stockholders Listed on
Schedule B Hereto
By: \s\ Xxxx X. Xxxxxx
Attorney-in-fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
BT ALEX. XXXXX INCORPORATED,
XXXXXX BROTHERS INCORPORATED,
XXXXXX XXXXXXX & CO. INCORPORATED,
BEAR, XXXXXXX & CO. INC.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED and
XXXXX XXXXXX, INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By Credit Suisse First Boston Corporation
By: \s\ Xxxxxxx X. Xxxxx
Name: Xxxxxxx Xxxxx
Title: Managing Director
21
SCHEDULE A
Number of
Firm Securities
Selling Stockholder to be Sold
------------------- -------------
Xxxxxxx Xxxxx 8,888
Xxx Xxxx Xxxxxxxx 88,889
The Gearon Family Trust 71,111
Xxxxx Xxxxxx Xxxxxxx 66,666
Melham Inc. 172,537
Mayfirst Associates Ltd. 108,377
Xxxxx X. XxXxxxx 204,375
Xxxxxxx X. Xxxxxxx 179,375
Xxxxxxxx X. Xxxxxxx 300,000
---------
Total 1,200,218
=========
SCHEDULE B
Number of
Firm Securities
Selling Stockholder to be Sold
------------------- -------------
Xxxxxx 1994 Limited Partnership 192,671
Xxxxxx Family Limited Partnership 192,671
BOCP II, Limited Liability Company 1,014,607
Equus Equity Appreciation Fund, L.P. 732,151
Xxxxxxx X. Xxxxxx 202,305
Xxxxxx X. Xxxxxx 25,457
Xxxxxx Xxxxx Xxxxxx 6,557
Summit Capital Inc. 289,007
Xxx Xxxxxx Xxxxx Trust 19,267
---------
Total 2,674,693
=========
SCHEDULE C
Number of
Firm Securities
to be
Underwriter Purchased
----------- ---------
Credit Suisse First Boston Corporation 7,343,730
BT Alex. Xxxxx Incorporated 4,406,236
Xxxxxx Brothers Incorporated 4,406,236
Xxxxxx Xxxxxxx & Co. Incorporated 4,406,236
Bear, Xxxxxxx & Co. Inc. 2,937,491
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx
Incorporated 2,937,491
Xxxxx Xxxxxx Inc. 2,937,491
----------
Total
29,374,911
==========
ANNEX I
American Tower Systems (Delaware), Inc.
ATS Merger Corporation
ATSC Holding, Inc.
ATSC Operating Inc.
ATSC GP Inc.
ATSC LP, Inc.
American Tower Systems, L.P.
