Exhibit 10.12
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WARRANT
REGISTRATION RIGHTS AGREEMENT
AMERICAN TOWER CORPORATION
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Warrants to Purchase 11,389,012 Shares of Common Stock
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Dated as of January 29, 2003
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CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, XXXXX & CO.
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This Warrant Registration Rights Agreement (this "Agreement") is made and
entered into as of January 29, 2003, between American Tower Corporation, a
Delaware corporation (the "Company"), and Credit Suisse First Boston LLC and
Xxxxxxx, Sachs & Co. (each an "Initial Purchaser" and collectively, the "Initial
Purchasers"), which have agreed to purchase the Warrants of the Company issued
pursuant to the Warrant Agreement (the "Warrant Agreement"), dated as of the
date hereof, between the Company and The Bank of New York, as warrant agent (the
"Warrant Agent").
The Warrants are being issued and sold in connection with the offering by
American Tower Escrow Corporation, which is expected to merge with and into
American Towers, Inc. (together, "American Towers") of 808,000 Units each
consisting of (i) $1,000 principal amount at maturity of 12.25% Senior
Subordinated Discount Notes due 2008 (the "Notes") of American Towers, issued
pursuant to the Indenture, dated as of January 29, 2003 among American Towers,
the Guarantors named therein (from and after the consummation of the Escrow
Corp. Merger) and The Bank of New York, as trustee (the "Indenture") and (ii)
one Warrant to purchase 14.0953 fully paid and non-assessable shares of the
Company's Class A common stock (the "Warrant Shares").
This Agreement is made pursuant to the Purchase Agreement, dated January
22, 2003 (the "Purchase Agreement"), by and among American Towers, the
Guarantors (as defined in the Purchase Agreement) (from and after the
consummation of the Escrow Corp. Merger) and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Warrants, the Company has agreed
to provide the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 6(g) of the Purchase Agreement. Capitalized
terms used herein and not otherwise defined shall have the meaning assigned to
them in the Warrant Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144.
Black Out Notice: As defined in Section 5(b) hereof.
Black Out Period: As defined in Section 3(a) hereof.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Escrow Corp:. means American Tower Escrow Corporation, a Delaware
corporation.
Escrow Corp. Merger: means the merger transaction involving Escrow Corp.
and American Towers, Inc. pursuant to the Escrow Corp. Merger Agreement.
Escrow Corp. Merger Agreement: means an Agreement and Plan of Merger with
respect to the Escrow Crop. Merger, dated as of the date of the Indenture.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Holders: As defined in Section 2 hereof.
Majority Holders: shall mean, on any date, Holders of a majority of the
aggregate amount of Warrants registered under a Registration Statement.
Notice and Questionnaire: shall mean a written notice delivered to the
Company substantially in the form attached as Annex A hereto.
Notice Holder: shall mean, on any date, any Holder of Transfer Restricted
Securities that has delivered a Notice and Questionnaire to the Company on or
prior to such date.
Prospectus: The prospectus included in a Registration Statement at the time
such Registration Statement is declared effective, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
Registration Default: shall have the meaning assigned in Section 6 hereof.
Registration Statement: Any registration statement of the Company relating
to the registration for resale of Transfer Restricted Securities and the
issuance of the Company's Class A common stock upon the exercise of the Warrants
resold pursuant to the Registration Statement that is filed pursuant to the
provisions of this Agreement and including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Act.
Selling Holder: a Holder who is selling Transfer Restricted Securities
pursuant to Section 3 hereof.
Transfer Restricted Securities: (a) Each Warrant and Warrant Share held by
an Affiliate of the Company and (b) each other Warrant and Warrant Share until
the earlier to occur of (i) the date on which such Warrant or Warrant Share
(other than any Warrant Share issued upon exercise of a Warrant in accordance
with a Registration Statement) has been disposed of in accordance with a
Registration Statement and (ii) the date on which such Warrant or Warrant Share
(or the related Warrant) is distributed to the public pursuant to Rule 144 under
the Act.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person is the holder of record of Transfer Restricted
Securities.
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3. SHELF REGISTRATION
(a) Shelf Registration. The Company shall prepare and cause to be filed
with the Commission on or before 90 days from the Closing Date pursuant to Rule
415 under the Securities Act a Registration Statement on the appropriate form
relating to resales of Transfer Restricted Securities by the Holders thereof and
issuance of the Company's Class A common stock upon the exercise of the Warrants
resold pursuant to such registration statement. The Company shall use its
reasonable best efforts to cause the Registration Statement to be declared
effective by the Commission, subject to certain exceptions discussed herein, on
or before 180 days after the Closing Date.
(b) To the extent necessary to ensure that the Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of Section 3(a) hereof, the Company shall use its
reasonable best efforts to keep any Registration Statement required by Section
3(a) hereof continuously effective, supplemented, amended and current as
required by and subject to the provisions of Sections 3(c) and 5(a) hereof and
in conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, until
the second anniversary of the date hereof; provided that such obligation shall
expire before such date if the Company delivers to the Warrant Agent a written
opinion of counsel to the Company (which opinion of counsel shall be
satisfactory to the Company) that all Holders (other than Affiliates of the
Company) of Warrants and Warrant Shares may resell the Warrants and the Warrant
Shares without registration under the Act and without restriction as to the
manner, timing or volume of any such sale; and provided, further, that
notwithstanding the foregoing, any Affiliate of the Company may, with notice to
the Company, require the Company to keep the Registration Statement continuously
effective for resales by such Affiliate for so long as such Affiliate holds
Warrants or Warrant Shares, including as a result of any market-making
activities or other trading activities of such Affiliate.
(c) Notwithstanding the foregoing, the Company shall not be required to
amend or supplement the Registration Statement, any related prospectus or any
document incorporated therein by reference and may suspend the availability of
the Registration Statement, for a period (a "Black Out Period") not to exceed,
for so long as this Agreement is in effect, an aggregate of 60 days in any
calendar year, (i) upon the occurrence or existence of any pending corporate
development or any other material event as a result of which the Registration
Statement, any related prospectus or any document incorporated therein by
reference as then amended or supplemented would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (ii)(A) the
Company determines in good faith and in its sole judgment that the disclosure of
such event at such time would not be in the best interests of the Company or (B)
the disclosure otherwise relates to a material business transaction which has
not yet been publicly disclosed; provided that such Black Out Period shall be
extended for any period, not to exceed an aggregate of 30 days in any calendar
year, during which the Commission is reviewing any proposed amendment or
supplement to the Registration Statement, any related prospectus or any document
incorporated therein by reference which has been filed by the Company.
4. HOLDER INFORMATION
No Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Company in writing, within 20 days
after receipt of a request therefor substantially in the form of the Notice and
Questionnaire, the information specified in Item 507 or 508 of Regulation S-K,
as applicable, of the Act for use in connection with any Registration Statement
or Prospectus or preliminary Prospectus
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included therein. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
5. REGISTRATION PROCEDURES
(a) In connection with the Registration Statement and any related
Prospectus required by this Agreement, the Company shall:
(i) use its reasonable best efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance
with the provisions hereof;
(ii) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide or incorporate by reference
all requisite financial statements for the period specified in Section 3 of
this Agreement. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue statement of 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 (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company shall, except to the extent
permitted by Section 3(c) hereof, file promptly an appropriate amendment to
such Registration Statement or a supplement to the Prospectus, as
applicable, curing such defect, and, in the case of an amendment, use its
reasonable best efforts to cause such amendment to be declared effective as
soon as practicable;
(iii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 hereof; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the disposition
of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iv) advise the Notice Holders promptly and, if requested by the
Notice Holders, confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, and (D) of the existence of any fact or the happening of any
event that makes any statement of a material fact made in the
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Registration Statement, the Prospectus, any amendment or supplement thereto
or any document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Registration Statement in
order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(v) subject to Section 3(c) hereof, if any fact or event
contemplated by Section 5(a)(iv)(D) hereof shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain 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;
(vi) before filling any Registration Statement or Prospectus or
any amendments or supplements thereto (including all documents incorporated
by reference after the initial filing of such Registration Statement)
furnish to and afford such Holder and such Holder's counsel, if any, a
reasonable opportunity to review copies of all such documents proposed to
be filed (in each case, where possible, at least five Business Days prior
to such filing, or such later date as is reasonable under the
circumstances), and shall incorporate into such filings such comments and
changes as may be reasonably requested by such persons. The provisions of
this Section 4(a) shall not apply to the filing by the Company of annual,
quarterly or current reports, or proxy statements or schedules under the
Exchange Act. The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if Holders of the
Majority Holders covered by such Registration Statement or their counsel,
shall reasonably and in a timely manner object.
(vii) Make available at reasonable times for inspection by one
or more representatives of the Selling Holders, designated in writing by a
Majority of Holders whose Transfer Restricted Securities are included in
the Registration Statement, and any attorney or accountant retained by such
Selling Holders, all financial and other records, pertinent corporate
documents and properties of the Company as shall be reasonably necessary to
enable them to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act, and cause the Company's officers,
directors, managers and employees to supply all information reasonably
requested by any such representative or representatives of the Selling
Holders, attorney or accountant in connection therewith; provided, however,
that any information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information shall be
kept confidential by the Selling Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available
to the public generally or through a third party without an accompanying
obligation of confidentiality;
(viii) if requested by the Selling Holders, promptly include in
any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as the Selling
Holders may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
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Transfer Restricted Securities and the use of the Registration Statement or
Prospectus for market-making activities; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(ix) furnish to each Selling Holder and each Holder upon
request, without charge, at least one copy of the Registration Statement,
as first filed with the Commission, and of each amendment;
(x) deliver to the underwriters, if any, and each Holder,
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as the
underwriters, if any, or such Selling Holder reasonably may request; the
Company hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each selling Person
in connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement thereto
and all market-making activities of the underwriters, if any, as the case
may be;
(xi) enter into such agreements (including underwriting
agreements) and make such representations and warranties and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
applicable Registration Statement contemplated by this Agreement as may be
reasonably requested by the Selling Holders in connection with any sale or
resale pursuant to any applicable Registration Statement. In such
connection, the Company shall:
(A) if requested by the Majority Holders, furnish (or, in the
case of paragraphs (2) and (3), use its reasonable best efforts to
cause to be furnished) to the Selling Holders, upon the effectiveness
of the Registration Statement:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Company,
confirming, as of the date thereof, the matters set forth in
Sections 6(b) and 6(e) of the Purchase Agreement and such other
similar matters as such Person may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Registration Statement, of counsel for the Company covering
matters similar to those set forth in Schedules D and E of the
Purchase Agreement and such other matters as the Selling Holders
may reasonably request, and in any event including a statement to
the effect that such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants for the
Company and have considered the matters required to be stated
therein and the statements contained therein, although such
counsel has not independently verified the accuracy, completeness
or fairness of such statements; and that such counsel advises
that, on the basis of the foregoing (relying as to materiality to
the extent such counsel deems appropriate upon the statements of
officers and other representatives of the Company) and without
independent check or verification), no facts came to such
counsel's attention that caused such counsel to believe that the
applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective, contained an untrue statement of a material fact or
omitted to state a
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material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date contained
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules and
other financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of
effectiveness of the Registration Statement, from the Company's
independent accountants, in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings, and
affirming the matters set forth in the comfort letters delivered
pursuant to Section 9(i) of the Purchase Agreement; provided the
appropriate representation letters are provided to the
accountants from the Holders under Statement on Auditing
Standards No. 72.
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Registration Statement the indemnification provisions
and procedure of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the Selling Holders to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in any agreement entered into by the Company
pursuant to this clause;
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any time
the representations and warranties of the Company contemplated in (A)(i) above
cease to be true and correct, the Company shall so advise the underwriter(s), if
any, and Selling Holders promptly and if requested by such Persons, shall
confirm such advise in writing.
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the Selling Holders, the underwriter(s), if any,
and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the Holders or underwriter(s), if
any, may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that where Transfer Restricted Securities are offered
other than through an underwritten offering, the Company agrees to cause
its counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(a)(xiii),
keep each such registration or qualification (or exemption therefrom)
effective during the period that the applicable Registration Statement is
required to remain effective under the terms of this Agreement and do any
and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the securities covered thereby;
provided that the Company shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation,
other
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than as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and such
names as the selling Holders may reasonably request at least two Business
Days prior to such sale of Transfer Restricted Securities;
(xiv) use its reasonable best efforts to cause the disposition
of the Transfer Restricted Securities covered by the Registration Statement
to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Warrant Agent
with printed certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with The Depository Trust Company;
(xvi) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in Rule 158(c) under the
Act); and
(xvii) provide promptly to the Holders, upon written request,
each document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(b) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and the Initial Purchasers agrees that, upon
receipt of the notice (without notice of the nature or details of the events)
from the Company of the commencement of a Black Out Period (in each case, a
"Black Out Notice"), such Person will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until such Person is advised in writing by the Company of the termination of the
Black Out Period and such Holder receives copies of the supplemented or amended
Prospectus contemplated by Section 5(a)(v) hereof, or until such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Company each
Person receiving a Black Out Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Person's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Person's possession of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the Black Out Notice.
6. LIQUIDATED DAMAGES
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If the Registration Statement: (i) is not filed with the Commission on
or prior to the date specified for such filing in Section 3(a) hereof; (ii) has
not been declared effective by the Commission on or prior to the dated specified
for such effectiveness in Section 3(a) hereof; or (iii) following the date such
Registration Statement is declared effective by the Commission, shall cease to
be effective without being restored to effectiveness by amendment or otherwise
within 30 business days, other than as permitted by Section 3(c) hereof (each
such event referred to in clauses (i) through (iii), a "Registration Default")
to the extent permitted by applicable law, the Company shall pay as liquidated
damages and not as a penalty to each Holder during the first 90-day period
immediately following the occurrence, and during the continuance of such
Registration Default, an amount equal to $0.01 per week per Warrant (or per such
number of Warrant Shares then issuable upon exercise of or in respect of a
Warrant) held by such Holder for each week or portion thereof that the
Registration Default continues. To the extent permitted by applicable law, the
amount of the liquidated damages will increase by an additional $0.01 per week
per Warrant (or per such number of Warrant Shares then issuable upon exercise of
or in respect of a Warrant) with respect to each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum amount of liquidated
damages of $0.05 per week per Warrant (or per such number of Warrant Shares then
issuable upon exercise of or in respect of a Warrant).
All accrued liquidated damages shall be paid to record Holders by the
Company by wire transfer of immediately available funds, or by mailing a federal
funds check, on February 1 and August 1 of any given year. All obligations of
the Company set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security has been
effectively registered under the Act shall survive until such time as all such
obligations with respect to such security have been satisfied in full.
7. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or compliance with
this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing Prospectuses (whether for sales,
market-making or otherwise), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company; (v) all application and
filing fees in connection with listing the Warrant Shares on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; and (vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit (which
shall not be required except to the extent required by applicable law) and
comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, officers and each Person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments,
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims,
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damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Company to any Holder or any prospective purchaser of Transfer
Restricted Securities, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement or omission
or alleged untrue statement or omission that is based upon information relating
to a Holder furnished in writing to the Company by such Holder.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, to the same extent
as the foregoing indemnity from the Company set forth in Section 6(a) hereof,
but only with reference to information relating to such Holder furnished in
writing to the Company by such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. This indemnity agreement shall be in addition to any liability which
any such Holder may otherwise have.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing,
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that,
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party, unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such reasonable fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
effected with its written consent. The Company shall not, without the prior
written consent of the
10
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Holders, on the other hand, from their sale of Transfer Restricted
Securities or (ii) if the allocation provided by clause 8(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) hereof but also the relative
fault of the Company, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holder, on the other hand, 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, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 8(a),
any reasonable legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims, damages,
liabilities or judgments.
The Company and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8, no Holder, its directors, its
officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each Holder hereunder
and not joint.
9. RULE 144
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company is
subject to Section 13 or 15(d) of the Exchange Act, to make all filings required
thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
11
10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations under this Agreement may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 3 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof, except that the filing of the
Registration Statement hereunder would require notice to be sent to holders
under the Company's registration rights agreement dated February 25, 1999, as
amended, and require the inclusion of such holders in a Registration Statement
filed hereunder.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of this Section
10(c)(i), the Company has obtained the written consent of Holders of all
outstanding Transfer Restricted Securities, and (ii) in the case of all other
provisions hereof, the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Company or its
Affiliates).
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements granting rights to Holders made hereunder
between the Company, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Warrant Agent, with a copy to the Warrant Agent; and
(ii) if to the Company:
American Tower Corporation
000 Xxxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer and Treasurer
Executive Vice President and General Counsel
12
With a copy to:
Xxxxxx & Dodge LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Warrant Agent at the
address specified in Warrant Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without limitation, and without the need for an express assignment,
subsequent Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the Warrant
Agreement. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(g) Termination. This Agreement shall automatically terminate on the
Redemption Date if the Escrow Corp. Merger has not been consummated.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF. The Company hereby irrevocably and
unconditionally: (i) submits itself and its property in any legal action or
proceeding relating to this Agreement or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive jurisdiction of the courts of
the State of New York and the courts of the United States of America for the
Southern District of New York, and appellate courts thereof, and consents and
agrees to such action or proceeding being brought in such courts; and (ii)
waives any objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or proceeding was
brought in any inconvenient court and agrees not to plead or claim the same.
13
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AMERICAN TOWER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
The foregoing Agreement is hereby
confirmed and accepted
as of the date first above written.
By Credit Suisse First Boston LLC
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
For themselves and the other several
Purchasers name in Schedule A to the Purchase Agreement.
ANNEX A
AMERICAN TOWER CORPORATION
Notice of Registration Statement and Selling
Securityholder Questionnaire
(Date)
Reference is hereby made to the Warrant Registration Rights Agreement (the "
Warrant Registration Rights Agreement") between American Tower Corporation (the
"Company") and the Initial Purchasers named therein. Pursuant to the Warrant
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form ___ (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Company's warrants to purchase Class A Common Stock, par value $0.01 per
share of the Company, and the shares of Class A common stock issuable upon
exercise thereof (collectively, the "Securities"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Warrant
Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities (as defined below) is
entitled to have the Transfer Restricted Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Transfer
Restricted Securities included in the Shelf Registration Statement, this Notice
of Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel of the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Beneficial owners of Transfer Restricted Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the Prospectus forming a part thereof for resales of Transfer
Restricted Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Transfer Restricted Securities are advised to consult
their own securities law counsel regarding the consequence of being named or not
being named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "TRANSFER RESTRICTED SECURITIES" has the meaning assigned in the
Warrant Registration Rights Agreement.
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer Restricted
Securities hereby elects to include in the Shelf Registration Statement the
Transfer Restricted Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Transfer Restricted Securities by the
terms and conditions of this Notice and Questionnaire and the Warrant
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth as Annex B to the
Warrant Registration Rights Agreement. The Selling Securityholder hereby
provides the following information to the Company and represents and warrants
that such information is accurate and complete:
2
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityho1der:
(b) Full Legal Name of Holder (if not the same as in (a) above) of
Transfer Restricted Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Transfer Restricted Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Number of Transfer Restricted Securities beneficially owned: _____
CUSIP No(s). of such Transfer Restricted Securities_____
(b) Number of Securities other than Transfer Restricted Securities
beneficially owned: ____ CUSIP No(s). of such other Securities_____
(c) Number of Transfer Restricted Securities which the undersigned wishes
to be included in the Shelf Registration Statement: _____ CUSIP No(s).
of such Transfer Restricted Securities to be included in the Shelf
Registration Statement_____
(4) Beneficial Ownership of other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item
(3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
(6) Plan of Distribution:
State any exceptions here:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Transfer Restricted Securities listed above in Item (3) only
as follows (if at all): Such Transfer Restricted Securities may be sold from
time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such Transfer
Restricted Securities may be sold in one or more transactions at fixed prices,
at prevailing market prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation
3
service on which the Registered Securities may be listed or quoted at the time
of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise
than on such exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the Transfer
Restricted Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Transfer Restricted Securities in the course of hedging the
positions they assume. The Selling Securityholder may also sell Transfer
Restricted Securities short and deliver Transfer Restricted Securities to close
out such short positions, or loan or pledge Transfer Restricted Securities to
broker-dealers that in turn may sell such securities
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Warrant Registration
Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus. In accordance with the
Selling Securityholder's obligation under Section 3(e) of the Warrant
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Warrant Registration Rights
Agreement shall be made in writing, by hand-delivery, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
___________________
___________________
___________________
___________________
___________________
(ii) With a copy to:
___________________
___________________
___________________
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Transfer Restricted Securities
beneficially owned by such Selling
4
Securityholder and listed in Item (3) above). This Agreement shall be governed
in all respects by the laws of the State of New York.
5
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name of beneficial owner of Transfer Restricted
Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
___________________
___________________
___________________
___________________
___________________
ANNEX B
Notice of Transfer Pursuant to Registration Statement
America Towers Corporation
The Bank of New York
Trustee Services
0 Xxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Trust Officer
Re: Warrants to purchase Class A Common Stock, par value $0.01 per share
Dear Sirs:
Please be advised that ____________________has transferred ________________
of the above-referenced Warrants pursuant to an effective Registration Statement
on Form [ ] (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Warrants is named as a "Selling Holder" in the
Prospectus dated [DATE] or in supplements thereto, and that the number of
Warrants transferred is the number listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
________________________________
(Name)
By: (Authorized Signature)
