Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
AMONG
AMERICAN TOWER SYSTEMS CORPORATION
and
THE STOCKHOLDERS NAMED HEREIN
January 22, 1998
TABLE OF CONTENTS
1. Registration of Securities. ....................................... 1
(a) Registration by ATS.......................................... 1
(b) Registration at Stockholders' Request........................ 2
(c) Registration Generally....................................... 3
(d) Restrictions on Registration................................. 8
(e) Additional Restrictions on Registration...................... 8
2. Conditions to Registration......................................... 8
3. Indemnification.................................................... 9
(a) Indemnification by ATS....................................... 9
(b) Indemnification by Holders of Registrable Securities......... 10
(c) Procedure.................................................... 10
(d) Contribution................................................. 11
4. Exchange Act Registration.......................................... 12
5. Termination of Registration Obligations............................ 13
6. Limitation on Registration Rights of Others........................ 14
7. Mergers, etc....................................................... 14
8. Annual and Quarterly Reports; Other Information.................... 14
9. Lock-Up Agreement.................................................. 15
10. Withdrawals........................................................ 15
11. Definitions........................................................ 15
12. Miscellaneous................................................ 19
(a) Assignment; Successors and Assigns........................... 19
(b) Specific Performance; Other Rights and Remedies.............. 20
(c) Expenses..................................................... 20
(d) Entire Agreement............................................. 20
(e) Waivers; Amendments.......................................... 20
(f) Notices...................................................... 20
(g) Severability................................................. 21
(h) Counterparts................................................. 21
(i) Section Headings............................................. 21
(j) Governing Law................................................ 21
(k) Further Acts................................................. 22
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of January 22, 1998, by and among American Tower Systems Corporation, a
Delaware corporation ("ATS"), 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 Radio Systems Corporation, a Delaware corporation
("ARS"), and certain of the Stockholders entered into that certain Registration
Rights Agreement dated as of November 1, 1993, as heretofore amended and
restated (as so amended and restated, the "ARS Agreement"); and
WHEREAS, pursuant to 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. (the "ARS Merger Agreement"), the Stockholders who are parties
to the ARS Agreement will receive shares of Common Stock of ATS; and
WHEREAS, ATS has agreed to grant to those Persons who were a party to the
ARS Agreement and who are or may be deemed to be Affiliates of ATS registration
rights comparable to those contained in the ARS Agreement; and
WHEREAS, ATS has entered into a Stock Purchase Agreement, dated as of
January 8, 1998, with certain of the Stockholders relating to the issue and sale
of shares of Common Stock of ATS (the "ATS Stock Purchase Agreement"), and it is
a condition of the obligation of such Stockholders to consummate the
transactions contemplated by the ATS Stock Purchase Agreement that ATS enter
into an agreement substantially in the form of this Agreement; and
WHEREAS, ATS 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.
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(a) Registration by ATS. If at any time or from time to time ATS shall
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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, ATS 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 ATS 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 ATS, 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 ATS 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 ATS in writing within ten (10)
business days after the date of ATS' notice, setting forth the number or amount
of Registrable Securities for which registration is so requested. Neither the
delivery of the notice by ATS nor of the request by any Stockholders shall in
any way obligate ATS to file a Registration Statement and, notwithstanding such
filing, ATS 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 ATS of its obligation to effect
registration of Registrable Securities upon any request made pursuant to the
provisions of Section 1(b).
(b) Registration at Stockholders' Request. Upon the written request of any
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Significant Stockholder requesting that ATS 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, ATS 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 ATS 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 ATS has been requested to
register by the holders of Registrable Securities by written request
delivered to ATS within ten (10) business days after the giving of such
notice by ATS (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 ATS 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, ATS
need not so cause a
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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 three (3) occasions; provided, however, that there shall be no limit
on the number of times ATS 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.
ATS shall not grant to any person the right to request ATS to register, nor
shall ATS 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.
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 ATS shall be required by the
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provisions of this Section to effect the registration of Registrable Securities
under the Securities Act, ATS 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
ATS 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 ATS 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
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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,
(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 ATS
contemplated by paragraph (xv) below cease to be true and correct in
all material respects,
(E) of the receipt by ATS 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;
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(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 ATS 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; ATS
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;
(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 ATS 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
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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, ATS 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 ATS, 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;
(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 ATS (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 ATS' 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
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(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 ATS.
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 ATS, and cause ATS' 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 information shall reasonably determine; provided,
however, that any records, information or documents that are designated by
ATS 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
ATS (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 ATS'
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
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(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 ATS.
(d) Restrictions on Registration. Anything in Section 1 to the
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contrary notwithstanding, ATS 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 ATS 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 ATS
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 ATS offering, in which event ATS 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
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the contrary notwithstanding, ATS shall not be required to file a registration
statement requested pursuant to this Section 1 if ATS 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 ATS
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 ATS has a bona fide business purpose for preserving as
confidential and that is not then otherwise required to be disclosed; provided,
however, that ATS' 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 ATS
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.
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Each Stockholder's right to have Registrable Securities included in any
Registration Statement filed by ATS 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 ATS 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 ATS or its counsel
properly to prepare and file such Registration Statement in accordance with
applicable provisions of the Securities Act;
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(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 ATS such
written undertakings as ATS 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 ATS, 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 ATS 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 ATS 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 ATS
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 ATS, such holder will deliver to
ATS (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 ATS.
3. Indemnification.
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(a) Indemnification by ATS. In the event of the registration of any
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Registrable Securities under the Securities Act pursuant to the provisions
hereof, ATS 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 ATS 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
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incorporated by reference in the Registration Statement, Prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to ATS 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, ATS,
each director of ATS, each officer of ATS 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 ATS or any such underwriter, broker or dealer within the meaning of the
Securities Act or the Exchange Act (each such person including without
limitation ATS 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 ATS 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
ATS 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.
(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.
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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 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. ATS 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.
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Indemnification or, if appropriate, contribution, similar to that specified
in the preceding provisions of this Section (with appropriate modifications)
shall be given by ATS 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, ATS 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.
-------------------------
ATS 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 ATS 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 ATS 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
(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 ATS) 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
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(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.
ATS 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. ATS
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 ATS 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 ATS to any Stockholder with respect to its rights of
registration provided for in Section 1:
(a) shall continue until such time as Xxxxxxxx & Worcester LLP, or
other counsel for ATS knowledgeable in securities law matters and
reasonably acceptable to such Stockholder has delivered a written opinion
to ATS 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
Xxxxxxxx & Worcester LLP, or other counsel for ATS knowledgeable in
securities law matters and reasonably acceptable to such Stockholder has
delivered a written opinion to ATS 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.
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.
ATS 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
-13-
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 ATS
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
ATS 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 ATS' obligations pursuant to this
Section.
6. Registration Rights of Others.
-----------------------------
ATS 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 ATS, ATS 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 ATS shall not be the surviving corporation unless the surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in a writing to as sume all of the obligations of ATS 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.
-----------------------------------------------
ATS 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 ATS, 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.
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 ATS and any underwriter of Common Stock (or other
equity securities of ATS) which may be entered into in connection with each
underwritten public offering of the Common Stock (or other equity securities of
ATS) so long as the "lock-up" period does not exceed ninety (90) days (or such
longer period (not exceeding
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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, ATS shall be deemed
to have consummated such offering for purposes of Section 1 unless such
Stockholder(s) agree to reimburse ATS for all Registration Expenses incurred by
ATS 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)
ATS' 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 ATS, 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" is defined in the first Whereas clause.
"ARS AGREEMENT" is defined in the first Whereas clause.
"ATS" is defined in the first paragraph.
"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
-15-
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 ATS.
"COMMISSION" shall mean the Securities and Exchange Commission or any
successor Authority.
"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 ATS 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.
"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
ATS Stock Purchase Agreement; (iii) the Gearon Agreement and (iv) any other
agreements approved from time to time by Board of Directors of ATS pursuant to
which Common Stock of ATS 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 any reference to any
statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
"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 ATS, American Tower Systems, Inc., Gearon & Co.,
Inc. and J. Xxxxxxx Xxxxxx, Xx.
"GEARON STOCKHOLDERS" shall mean the parties who received ATS 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
-16-
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 ARS 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 ATS 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 ATS derived from the Registrable Securities, whether
as a result of 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
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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 ATS, 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
ATS (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 ATS,
the underwriters and the selling holders;
(g) securities act liability insurance if ATS 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 ATS;
(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) ATS' 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 ATS which
covers Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments, including 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:
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(a) if ATS 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 ATS 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 ATS 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. Xxxxxxx Xxxxxx, Xx. 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 ATS 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 ATS' 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 ATS 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 ATS and such holder. ATS' 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 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
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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 ATS
(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. Xxxxxxx Xxxxxx, Xx., 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) ATS 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 communications shall be mailed, sent or delivered as follows:
If to American Tower Systems Corporation, at
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Chairman of the Board and Chief
Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
-20-
If to any Stockholder, at his address as it appears on the stock records of
ATS, 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 unenforce able
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 Agreement and the transactions
contemplated hereby or to facilitate the enjoyment of any of the rights created
hereby or to be created hereunder.
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IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of January 22, 1998.
American Tower Systems Corporation
By:__________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board and Chief Executive
Officer
______________________________________
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx Irrevocable Trust
By:______________________________________
Name:
Title:
Xxxxxxx X. Dodge Irrevocable Trust
By:______________________________________
Name:
Title:
Xxxxxxxx X. Xxxxx Irrevocable Trust
By:______________________________________
Name:
Title:
_________________________________________
Xxxxxx X. Xxxxxxx
_________________________________________
Xxxx X. Box
_________________________________________
Xxxxxxxx X. Xxxxxxx
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Chase Equity Associates, L.P.
By Chase Capital Partners, General Partner
By:______________________________________
Name:
Title:
_________________________________________
Xxxxx X. Eisenastein
_________________________________________
Xxxxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxxx
_________________________________________
Xxxxxx X. Xxxx
_________________________________________
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx and Bessemer Trust Company,
Trustees of Xxxx X. Xxxxxxx Irrevocable Trust
By:______________________________________
Bessemer Trust Company, Trustee of
Xxxxxx X. Xxxxxx Irrevocable Trust,
By:______________________________________
Name:
Title:
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_________________________________________
Xxxxxxxxx X. Xxxxxx
_________________________________________
Xxxx Xxxxxxxx Xxxxxx
_________________________________________
Xxxxxx Xxxxxx, Xx.
_________________________________________
Xxxxxxxx X. Xxxxxx
_________________________________________
Xxxxxxxxx X. Xxxxxx, Trustee of
Xxxxx Xxxxxxxxx Xxxxxx 30 Trust
_________________________________________
Xxxxxxxxx X. Xxxxxx, Trustee of
Xxxxxxx Xxxxxxxxx Xxxxxxxxx 21 Trust
Bessemer Trust Company, Trustee of
Alden Xxxxxxxxx Xxxxxx 35 Trust
By:______________________________________
Name:
Title:
Katharine and Xxxxxx Xxxxxx Foundation
By:______________________________________
Name:
Title:
Xxxxxx X. Xxxxxx Charitable Remainder Unitrust
dated May 3, 1993
By:______________________________________
Name:
Title:
-00-
Xxxxxx Xxxxxxxxxxxx:
_________________________________________
J. Xxxxxxx Xxxxxx, Xx.
The 1997 Gearon Family Trust
_________________________________________
By: J. Xxxxxxx Xxxxxx, Xx., Trustee
_________________________________________
Xxx Xxxx Xxxxxxxx
_________________________________________
Xxxx Xxxxxxx
_________________________________________
Xxxx Xxxxx
_________________________________________
_________________________________________
_________________________________________
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American Tower Corporation Stockholders:
_________________________________________
Xxxx X. Xxxxxx
Clear Channel Communications, Inc.
By:______________________________________
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
Chase Manhattan Capital Corporation
By:______________________________________
Name: Xxxxxxx Xxxx
Title: Principal
_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
_________________________________________
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