EXHIBIT 10.32
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 4, 1998
Among
AMERICAN TOWER SYSTEMS CORPORATION
as Issuer
and
CREDIT SUISSE FIRST BOSTON CORPORATION
CONSECO LIFE INSURANCE COMPANY
AMERICAN TRAVELLERS LIFE INSURANCE CO.
GREAT AMERICAN RESERVE INSURANCE CO.
as Initial Purchasers
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TABLE OF CONTENTS
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Page
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1. Definitions........................................................... 1
2. Exchange Offer........................................................ 5
3. Shelf Registration.................................................... 9
4. Additional Dividends.................................................. 11
5. Registration Procedures............................................... 11
6. Registration Expenses................................................. 21
7. Indemnification....................................................... 23
8. Rules 144 and 144A.................................................... 26
9. Underwritten Registrations............................................ 27
10. Representations and Warranties........................................ 27
11. Miscellaneous......................................................... 29
(a) No Inconsistent Agreements..................................... 29
(b) Adjustments Affecting Registrable Preferred Stock.............. 29
(c) Amendments and Waivers......................................... 29
(d) Notices........................................................ 30
(e) Successors and Assigns......................................... 31
(f) Counterparts................................................... 31
(g) Headings....................................................... 31
(h) Governing Law.................................................. 31
(i) Severability................................................... 32
(j) Securities Held by the Company or Its Affiliates............... 32
(k) Third Party Beneficiaries...................................... 32
(l) Entire Agreement............................................... ▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇ RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of June 4,
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1998, among American Tower Systems Corporation, a Delaware corporation (the
"Company"), Credit Suisse First Boston Corporation ("CSFBC"), Conseco Life
Insurance Company, American Travellers Life Insurance Co. and Great American
Reserve Insurance Co. (individually, an "Initial Purchaser"; together, the
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"Initial Purchasers").
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This Agreement is entered into in connection with the Securities Purchase
Agreement, dated as of June 4, 1998, among the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the issuance of the
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Company's Series A Redeemable Preferred Stock, par value $.01 per share (the
"PIK Preferred Stock"). In order to induce the Initial Purchasers to enter into
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the Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement for the benefit of the Initial Purchasers and
their direct and indirect transferees and assigns. The execution and delivery
of this Agreement is a condition to the Initial Purchasers' obligation to
purchase the PIK Preferred Stock under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
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As used in this Agreement, the following terms shall have the following
meanings:
Additional Dividends: See Section 4 hereof.
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Advice: See Section 5 hereof.
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Agreement: See the introductory paragraphs hereto.
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Applicable Period: See Section 2(b) hereof.
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Certificate of Designation: The Certificate of Designation governing the
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Underlying Preferred Stock as filed with the
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Secretary of State of the State of Delaware, as amended from time to time.
Certificate Shares: See Section 10 hereof.
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Closing Date: The Closing Date as defined in the Purchase Agreement.
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Company: See the first introductory paragraph hereto.
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CFCBC: See the first introductory paragraph hereto.
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Depositary: The Depository Trust Company until a successor is appointed by
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the Company and the Transfer Agent.
Effectiveness Date: Not later than the 335th day after the Issue Date or,
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in the case of a Shelf Registration Statement that is filed after the 245th day
after the Issue Date in accordance with the terms hereof, not later than the
90th day after a Shelf Registration Trigger.
Effectiveness Period: See Section 3 hereof.
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Event Date: See Section 4 hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and the
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rules and regulations of the SEC promulgated thereunder.
Exchange Debentures: The Company's Subordinated Exchange Debentures due
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2010 issuable in exchange for the Underlying Preferred Stock or the Exchange
Preferred Stock.
Exchange Offer: See Section 2(a) hereof.
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Exchange Preferred Stock: See Section 2(a) hereof.
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Exchange Registration Statement: See Section 2(a) hereof.
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Filing Date: Not later than the 245th day after the Issue Date or, in the
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case of a Shelf Registration Statement not later than the 30th day after a Shelf
Registration Trigger, if later.
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Global Certificate: See Section 10 hereof.
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Holder: Any holder of shares of Registrable Preferred Stock.
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Indemnified Person: See Section 7(c) hereof.
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Indemnifying Person: See Section 7(c) hereof.
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Initial Purchaser: See the first introductory paragraph hereto.
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Initial Purchasers: See the first introductory paragraph hereto.
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Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(n) hereof.
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Interim Financing Maturity Date. The date that is 365 days from the Issue
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Date.
Issue Date: The date on which PIK Preferred Stock was first issued and
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sold to the Initial Purchasers pursuant to the Purchase Agreement.
NASD: See Section 5(s) hereof.
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Participant: See Section 7(a) hereof.
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Participating Broker-Dealer: See Section 2(b) hereof.
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Person: An individual, partnership, corporation, limited liability
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company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
PIK Preferred Stock. See second introductory paragraph hereto.
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
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promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
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Records: See Section 5(n) hereof.
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Registrable Preferred Stock: Each share of Underlying Preferred Stock upon
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original issuance thereof and at all times subsequent thereto and each share of
Exchange Preferred Stock as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto until the earliest to
occur of (i) a Registration Statement (other than, with respect to any Exchange
Preferred Stock as to which Section 2(c)(iv) hereof is applicable, the Exchange
Registration Statement) covering such shares of Underlying Preferred Stock or
Exchange Preferred Stock, as the case may be, has been declared effective by the
SEC and such shares of Underlying Preferred Stock or Exchange Preferred Stock,
as the case may be, have been disposed of in accordance with such effective
Registration Statement, (ii) such shares of Underlying Preferred Stock or
Exchange Preferred Stock, as the case may be, are sold in compliance with Rule
144 or could (except with respect to affiliates of the Company within the
meaning of the Securities Act) be sold in compliance with paragraph (k) of such
Rule 144, (iii) in the case of Exchange Preferred Stock, such shares of Exchange
Preferred Stock have been issued pursuant to an Exchange Offer upon exchange of
PIK Preferred Stock and may be resold without restriction under state and
federal securities laws, or (iv) such shares of Underlying Preferred Stock or
Exchange Preferred Stock, as the case may be, cease to be outstanding. For
purposes of this Agreement and the registration requirements contained herein,
Registrable Preferred Stock shall be deemed to include, and all Registration
Statements required to be filed in accordance with the terms of this Agreement
shall cover, the Exchange Debentures into which any Registrable Preferred Stock
is exchangeable.
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Registration Statement: Any registration statement of the Company,
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including, but not limited to, the Exchange Registration Statement, filed with
the SEC pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including post-
effective amendments, all exhibits, and all material incorporated by reference
or deemed to be incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules and
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regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
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Shelf Registration: See Section 3(b) hereof.
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Shelf Registration Trigger: See Section 2(c) hereof.
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Subsequent Shelf Registration: See Section 3(b) hereof.
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Transfer Agent: The Transfer Agent for the Exchangeable Preferred Stock
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and/or the Exchange Preferred Stock as the context may require.
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TIA. The Trust Indenture Act of 1939, as amended, and the rules and
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regulations of the SEC promulgated thereunder.
Underlying Preferred Stock: The Company's Exchange Pay-In-Kind Preferred
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Stock, par value $.01 per share, issuable in exchange for the PIK Preferred
Stock as contemplated in the Certificate of Designation of the PIK Preferred
Stock.
Underwritten registration or underwritten offering: A registration in
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which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
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(a) The Company shall file with the SEC no later than the Filing Date, an
offer to exchange (the "Exchange Offer") any and all shares of the PIK Preferred
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Stock for shares (with a liquidation preference equal to that of the surrendered
shares) of another series of preferred stock of the Company (the "Exchange
Preferred Stock") that will have terms identical in all material respects to the
Underlying Preferred Stock except that (i) the Exchange Preferred Stock shall
have been registered pursuant to an effective Registration Statement under the
Securities Act and the certificates therefor shall not contain terms with
respect to transfer restrictions and shall contain no restrictive legend thereon
and (ii) the certificate of designation governing such Exchange Preferred Stock
does not need to contain the provisions set forth in the Certificate of
Designation concerning Additional Dividends including, without limitation,
Section 3(c) thereof. The Exchange Offer shall be registered under the
Securities Act on the appropriate form (the "Exchange Registration Statement")
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and shall comply in all material respects with all applicable tender offer rules
and regulations under the Exchange Act. The Company agrees to use its best
efforts to (x) cause the Exchange Registration Statement to be declared
effective under the Securities Act on or before the Effectiveness Date; (y) keep
the Exchange Offer open for at least 20 business days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders and in any event through the close of business on the Interim Financing
Maturity Date; and (z) consummate the Exchange Offer on the Interim Financing
Maturity Date. If after such Exchange Registration Statement is initially
declared effective
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by the SEC, the Exchange Offer or the issuance of the Exchange Preferred Stock
thereunder is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Exchange
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement. Each Holder who participates in the Exchange Offer will be
required to represent that any Exchange Preferred Stock received by it will be
acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Preferred Stock in violation of the provisions of the Securities Act, and that
such Holder is not an affiliate of the Company within the meaning of the
Securities Act. Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Preferred Stock held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Registrable Preferred Stock (other than in respect of any Exchange Preferred
Stock as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Preferred Stock (and the Exchange
Debentures) shall be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, that shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Preferred Stock received by such broker-dealer (a "Participating Broker-Dealer")
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in the Exchange Offer (other than with respect to any shares of Exchangeable
Preferred Stock acquired by them and having, or that is reasonably likely to be
determined to have, the status of an unsold allotment in the initial
distribution), whether such positions or policies have been publicly
disseminated by the Staff of the SEC or such positions or policies, in the
judgment of the Initial Purchasers, represent the prevailing views of the Staff
of the SEC. Such "Plan of Distribution" section shall also expressly permit the
use of the Prospectus by all Persons subject
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to the prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Preferred Stock.
The Company shall use its reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Preferred Stock; provided, however,
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that such period shall not exceed 180 days after the Exchange Registration
Statement is declared effective (or such longer period if extended pursuant to
the last paragraph of Section 5 hereof) (the "Applicable Period").
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Dividends on the Exchange Preferred Stock will accumulate from the last
dividend payment date on which dividends were paid (or deemed paid through the
issuance of additional shares) on the PIK Preferred Stock surrendered in
exchange therefor.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered shares of PIK Preferred Stock
at any time prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open;
(4) maintain the Exchange Offer open through the close of business on
the Interim Financing Maturity Date; and
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
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On the Interim Financing Maturity Date after the close of the Exchange
Offer the Company shall:
(1) accept for exchange all shares of PIK Preferred Stock tendered and
not validly withdrawn pursuant to the Exchange Offer;
(2) deliver to the Transfer Agent for cancellation and retirement
certificates representing all shares of PIK Preferred Stock so accepted for
exchange; and
(3) cause the Transfer Agent to countersign and deliver promptly to
each Holder of shares of PIK Preferred Stock, certificates for the shares
of Exchange Preferred Stock equal in liquidation preference to the shares
of PIK Preferred Stock of such Holder so accepted (including the applicable
redemption premium) for exchange.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Company is not permitted to effect
an Exchange Offer, (ii) the Exchange Offer is not consummated by the Interim
Financing Maturity Date, (iii) the Holders of not less than a majority of shares
of the Registrable Preferred Stock determine that the interests of the Holders
would be adversely affected by consummation of the Exchange Offer (in which
event the Company shall not proceed with or consummate the Exchange Offer), or
(iv) any Holder does not participate in the Exchange Offer, or the Company
determines, or a Holder notifies the Company that, after the Exchange Offer, a
Holder would not receive Exchange Preferred Stock on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
Company within the meaning of the Securities Act), then in the case of each of
clauses (i) to and including (iv) of this sentence (each event described in such
clauses, a "Shelf Registration Trigger"), the Company shall promptly deliver to
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the Holders written notice thereof (the "Shelf Notice") and shall file a Shelf
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Registration pursuant to Section 3 hereof. Notice by a Holder to the Company
that it does not intend to participate in the Exchange Offer shall also be
treated as a Shelf Registration Trigger under clause (iv) as of
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the notice date (which may be prior to commencement of the Exchange Offer or the
Effectiveness Date).
(d) Anything in this Section to the contrary notwithstanding, the Company
shall not be required to (i) file or have declared effective any Exchange
Registration Statement (ii) proceed with or consummate any Exchange Offer or
(iii) otherwise comply with the provisions of this Section 2, if a Shelf
Registration Trigger of the nature described in Section 2(c)(iii) shall have
occurred.
3. Shelf Registration
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Upon the occurrence of a Shelf Registration Trigger:
(a) Shelf Registration. The Company shall as promptly as reasonably
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practicable (but in no event shall such filing be required earlier than the
Filing Date) file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Preferred Stock or, in the case of a Shelf Registration Trigger pursuant to
clause (iv), such shares as are the subject of the Company's determination or
held by such Holder as described therein (the "Initial Shelf Registration").
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The Company shall use its best efforts to file with the SEC the Initial Shelf
Registration on or prior to the Filing Date. The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of such
Registrable Preferred Stock for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Company shall not permit any securities other than the
Registrable Preferred Stock (or Exchange Debentures, as the case may be) to be
included in the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below).
The Company shall use its best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is two years from the
Effectiveness Date, subject to extension pursuant to the last paragraph of
Section 5 hereof, or such shorter period ending when (i) all the shares of
Registrable Preferred Stock covered by the Initial Shelf
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Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) the date on which all the Registrable Preferred
Stock held by persons who are not affiliates of the Company may be resold
pursuant to Rule 144(k) under the Securities Act, or (iii) a Subsequent Shelf
Registration covering all of the Registrable Preferred Stock has been declared
effective under the Securities Act (the "Effectiveness Period").
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(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
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any Subsequent Shelf Registration ceases to be effective for any reason at any
time during the Effectiveness Period (other than because of the sale of all of
the securities registered thereunder), the Company shall use its reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Preferred Stock (a "Subsequent Shelf Registration"). If a
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Subsequent Shelf Registration is filed, the Company shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective or, if less, the number of days until
there are no shares of Registrable Preferred Stock outstanding. As used herein
the term "Shelf Registration" means the Initial Shelf Registration and any
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Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement and
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amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority of shares of the Registrable Preferred Stock covered
by such Registration Statement or by any underwriter of such Registrable
Preferred Stock.
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4. Additional Dividends
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The Company and the Initial Purchasers agree that the Holders of Underlying
Preferred Stock will suffer damages if the Company fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional dividends on the
Underlying Preferred Stock ("Additional Dividends") under the circumstances and
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to the extent set forth in the Certificate of Designation. The Company shall
notify the Transfer Agent within one business day after each and every date on
which an event occurs in respect of which Additional Dividends are required to
be paid (an "Event Date"). Any Additional Dividends will be payable in
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accordance with the Certificate of Designation on the next following dividend
payment date.
5. Registration Procedures
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In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Company hereunder the Company
shall:
(a) Prepare and file with the SEC prior to the Filing Date, a Registration
Statement or Registration Statements as prescribed by Sections 2 or 3 hereof,
and use its reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
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that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Preferred Stock covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies
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of all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
where possible at least five business days prior to such filing and where not
possible as promptly as possible). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the Holders
of a majority in aggregate liquidation preference of the shares of Registrable
Preferred Stock covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Company shall be deemed not to have used its reasonable best
efforts to keep a Registration Statement effective during the Applicable Period
if it voluntarily takes any action that would result in selling Holders of the
Registrable Preferred Stock covered thereby or Participating Broker-Dealers
seeking to sell Exchange Preferred Stock not being able to sell such Registrable
Preferred Stock or such Exchange Preferred Stock during that period unless such
action is required by applicable law or unless the Company complies with this
Agreement, including without limitation, the provisions of paragraph 5(k) hereof
and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by any
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Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, notify the selling Holders of shares of Registrable
Preferred Stock, or each such Participating Broker-Dealer, as the case may be,
their counsel and the managing underwriters, if any, promptly (but in any event
within two business days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) (A) of the receipt of any written comments by the
SEC or its staff, (B) of the request by the SEC or its staff for amendments or
supplements to a Registration Statement of a Prospectus, or (C) of the issuance
by the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii) if at
any time when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Preferred Stock or resales of Exchange
Preferred Stock by Participating Broker-Dealers the representations and
warranties of the Company contained in any agreement (including any underwriting
agreement), contemplated by Section 5(m) hereof cease to be true and correct in
all material respects, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Preferred
Stock to be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement
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of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (vi) of the Company's
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, use its reasonable best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Preferred Stock to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest possible
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if requested
by the managing underwriter or underwriters (if any), or the Holders of a
majority of aggregate the liquidation preference of the Registrable Preferred
Stock being sold in connection with an underwritten offering or any
Participating Broker-Dealer, (i) promptly incorporate in a prospectus supplement
or post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders, any Participating Broker-Dealer or counsel
for any of them determine is reasonably necessary to be included therein, (ii)
make all required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such prospectus supplement or post-effective
amendment and (iii) supplement or make amendments to such Registration
Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange
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Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Preferred Stock during the Applicable Period, furnish to each
selling Holder of Registrable Preferred Stock and to each such Participating
Broker-Dealer who so requests and to counsel and each managing underwriter, if
any, at the sole expense of the Company, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, deliver to each selling Holder of Registrable Preferred
Stock, or each such Participating Broker-Dealer, as the case may be, their
respective counsel, and the underwriters, if any, at the sole expense of the
Company, as many copies of the Prospectus (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Preferred Stock or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Preferred Stock covered by, or the sale by Participating Broker-Dealers of the
Exchange Preferred Stock pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Preferred Stock or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, to use its reasonable best efforts to register or
qualify, to the extent required by applicable law, and to cooperate with the
selling Holders of a Registrable Preferred
-16-
Stock or each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Preferred Stock or offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request; provided, however, that where Exchange
-------- -------
Preferred Stock held by Participating Broker-Dealers or Registrable Preferred
Stock is offered other than through an underwritten offering, the Company agrees
to cause the Company's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Exchange
Preferred Stock held by Participating Broker-Dealers or the Registrable
Preferred Stock covered by the applicable Registration Statement; provided,
--------
however, that the Company shall not be required to qualify as a foreign
-------
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation generally in any jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Preferred Stock and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing shares of Registrable
Preferred Stock to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such shares of Registrable Preferred Stock to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable Preferred
Stock covered by the Shelf Registration Statement or Exchange 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
-17-
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Preferred Stock, except as may be required
solely as a consequence of the nature of such selling Holder's business, in
which case the Company will cooperate in all reasonable respects with the filing
of such Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(ii)(C), 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(a) hereof) file with the SEC, at the sole
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Preferred Stock being sold thereunder or to the purchasers of
the Exchange Preferred Stock to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Preferred Stock, (i) provide the Transfer Agent with
certificates for the Registrable Preferred Stock in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Preferred Stock.
(m) In connection with any underwritten offering of Registrable Preferred
Stock pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of preferred stock similar to the
Exchangeable Preferred Stock and take all such other actions as are reasonably
requested by the managing underwriter or underwriters; in order to expedite or
facilitate the registration
-18-
or the disposition of such Registrable Preferred Stock and, in such connection,
(i) make such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Company and its subsidiaries
(including any acquired business, properties or entity, if applicable) and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, as are customarily made
by issuers to underwriters in underwritten offerings of preferred stock similar
to the Exchangeable Preferred Stock, and confirm the same in writing if and when
requested; (ii) obtain the written opinion of counsel to the Company and written
updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings of
preferred stock similar to the Registrable Preferred Stock and such other
matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of preferred stock similar to the Exchangeable Preferred
Stock and such other matters as reasonably requested by the managing underwriter
or underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate liquidation preference of
shares of Registrable Preferred Stock covered by such Registration Statement and
the managing underwriter or underwriters or agents) with respect to all parties
to be indemnified pursuant to said Section. The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
-19-
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, make available for inspection by any selling Holder of
such Registrable Preferred Stock being sold, or each such Participating Broker-
Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Preferred Stock, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
----------
hours at such time or times as shall be mutually convenient for the Company and
the Inspectors as a group, all financial and other records, pertinent corporate
documents and instruments of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
-------
applicable due diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be
confidential and any Records that it notifies the Inspectors are confidential
shall not be disclosed by any Inspector unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is, in the opinion of counsel for any Inspector,
necessary or advisable in connection with any action, claim, suit or proceeding,
directly, involving or potentially involving such Inspector and arising out of,
based upon, relating to, or involving this Agreement or any transactions
contemplated hereby or arising hereunder or (iv) the information in such Records
has been made generally available to the public other than through the acts of
such Inspector. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree that information obtained
by it as a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the securities of the
Company unless and until such information is
-20-
generally available to the public. Each selling Holder of such Registrable
Preferred Stock and each such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Company's sole expense.
(o) Provide (A) the Holders of the Registrable Preferred Stock to be
included in such registration statement and not more than one counsel for all
the Holders of such Registrable Preferred Stock, (B) the underwriters (which
term, for purposes of this Registration Rights Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement agent, if any,
thereof, (D) each Participating Broker-Dealer, and (E) one counsel for such
underwriters or agents and Participating Broker-Dealers, if any, reasonable
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the SEC, and each amendment or
supplement thereto;
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Preferred Stock is sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer, obtain an opinion of counsel to
the Company, in a form customary for underwritten transactions, addressed to the
Transfer Agent for the benefit of all Holders of Registrable Preferred Stock
participating in the Exchange Offer that the Exchange Preferred
-21-
Stock is duly authorized, validly issued, fully paid and non-assessable.
(r) If an Exchange Offer is to be consummated, upon delivery of shares of
Registrable Preferred Stock by Holders to the Company (or to such other Person
as directed by the Company) in exchange for shares of Exchange Preferred Stock,
the Company shall ▇▇▇▇, or cause to be marked, on the certificates representing
such shares of Registrable Preferred Stock that such shares of Registrable
Preferred Stock are being cancelled in exchange for the Exchange Preferred
Stock.
(s) Cooperate with each seller of Registrable Preferred Stock covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Preferred Stock and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD"), including if the Rules of Fair Practice
----
and the By-Laws of the NASD or any successor thereto, as amended from time to
time (including Schedule E thereto) so require, engaging a "qualified
independent underwriter" ("QIU") as contemplated therein and making Records
available to such QIU as though it were a participating underwriter for the
purposes of Section 5(n) and otherwise applying the provisions of this Agreement
to such QIU (including indemnification) as though it were a participating
underwriter.
(t) Provide an indenture trustee for the indenture relating to the Exchange
Debentures (the "Exchange Indenture") and cause the Exchange Indenture to be
qualified under the TIA not later than the effective date of the Exchange Offer
or the first Registration Statement relating to the Registrable Preferred Stock;
and in connection therewith, cooperate with the trustee under the Exchange
Indenture and the Holders of the Registrable Preferred Stock to effect such
changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use its best
efforts to cause such trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed with
the SEC to enable the Exchange Indenture to be so qualified in a timely manner.
(u) Use its reasonable best efforts to cause the Registrable Preferred
Stock covered by a Registration Statement
-22-
or the Exchange Preferred Stock, as the case may be, to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority of
shares of Registrable Preferred Stock covered by such Registration Statement or
the Exchange Preferred Stock, as the case may be, or the managing underwriter or
underwriters, if any.
(v) Use its reasonable best efforts to take all other steps necessary or
advisable to effect the registration of the Exchange Preferred Stock and/or
Registrable Preferred Stock covered by a Registration Statement contemplated
hereby.
The Company may require each seller of Registrable Preferred Stock as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Preferred Stock as the Company may, from time to time, reasonably request to the
extent necessary to comply with the Securities Act. The Company may exclude
from such registration the Registrable Preferred Stock of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such seller not materially misleading or to omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made.
Each Holder of Registrable Preferred Stock and each Participating Broker-
Dealer agrees by acquisition of such Registrable Preferred Stock or Exchange
Preferred Stock to be sold by such Participating Broker-Dealer, as the case may
be, that, upon actual receipt of any notice from the Company of the happening of
any event of the kind described in Section 5(c)(ii)(C), 5(c)(iv), 5(c)(v), or
5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such
Registrable Preferred Stock covered by such Registration Statement or Prospectus
or Exchange Preferred Stock to be sold by such Holder or Participating Broker-
Dealer, as the case may be, until such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section
-23-
5(k) hereof, or until it is advised in writing (the "Advice") by the Company
------
that the use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto. In the event the Company shall
give any such notice, each of the Effectiveness Period and the Applicable Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when each seller
of Registrable Preferred Stock covered by such Registration Statement or
Exchange Preferred Stock to be sold by such Participating Broker-Dealer, as the
case may be, shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company whether or not
the Exchange Registration Statement or a Shelf Registration is filed or becomes
effective, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Preferred Stock and
determination of the eligibility of the Registrable Preferred Stock for
investment under the laws of such jurisdictions as provided in Section 5(h)
hereof, in the case of Registrable Preferred Stock or Exchange Preferred Stock
to be sold by a Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, including, without limitation, expenses of printing
certificates for Registrable Preferred Stock in a form eligible for deposit with
The Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
by the Holders of a majority of shares of the Registrable Preferred Stock
included in any Registration Statement or sold by any Participating Broker-
Dealer as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and fees and
disbursements of special counsel for the sellers of Registrable Preferred Stock
(subject to the provisions of Section 6(b) hereof), (v) fees and
-24-
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act liability insurance,
if the Company desires such insurance, (viii) fees and expenses of all other
Persons retained by the Company, (ix) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (x) the expense
of any annual audit, (xi) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange, if
applicable, and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) The Company shall reimburse the Holders of the Registrable Preferred
Stock being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority of shares of the Registrable
Preferred Stock to be included in such Registration Statement and other
reasonable out-of-pocket expenses of such Holders of Registrable Preferred Stock
incurred in connection with the registration and sale of the Registrable
Preferred Stock pursuant to the Exchange Offer.
7. Indemnification
---------------
(a) The Company will indemnify and hold harmless each Holder of
Registrable Preferred Stock, each Person that participates as an underwriter or
sales agent in any sale of such Registered Preferred Stock and each
Participating Broker-Dealer selling Exchange Preferred Stock during the
Applicable Period (each a "Participant") against any losses, claims, damages or
liabilities, joint or several, to which such Participant may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or Prospectus, or
-25-
any amendment or supplement thereto or any related preliminary prospectus or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and will
reimburse each Participant for any legal or other expenses reasonably incurred
by such Participant in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
--------
however, that the Company will not be liable in any such case to the extent that
-------
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Initial Purchaser or Participant
specifically for use therein; provided, further, that the Company will not be
-------- -------
liable if such untrue statement or omission or alleged untrue statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto and the Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and any such loss, liability, claim, damage or expense suffered or
incurred by the Participants resulted from any action, claim or suit by any
Person who purchased Registrable Preferred Stock or Exchange Preferred Stock
that is the subject thereof from such Participant and it is established in the
related proceeding that such Participant failed to deliver or provide a copy of
the Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Preferred Stock or Exchange
Preferred Stock sold to such Person if required by applicable law, unless such
failure to deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 5 of
this Agreement.
(b) The Company may require, as a condition to including Registrable
Preferred Stock in any Registration Statement, that the related Participant
agree severally and not jointly to indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities
-26-
(or actions in respect hereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the any
Registration Statement or Prospectus, or any amendment or supplement thereto, or
any related prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Participant specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred. The liability of any
Participant under this paragraph shall in no event exceed the net proceeds
received by such Participant from sales of Registrable Preferred Stock or
Exchange Preferred Stock giving rise to such obligations.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party
-27-
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Participants on the other from the offering
of the Registrable Preferred Stock or Exchange Preferred Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Participants on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and any Participant on the other shall
be deemed to be in the same proportion as the total net proceeds from the
initial offering of the Exchangeable Preferred Stock (before deducting expenses)
received by the Company bear to the total net proceeds received by such
Participant from sales of Registrable Preferred Stock or Exchange Preferred
Stock giving rise to such obligations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or such Participant and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses
-28-
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Participant shall be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Participant from sales of Registrable Preferred Stock
or Exchange Preferred Stock exceeds the amount of any damages which such
Participant 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 Participants' obligations in this subsection
(d) to contribute are several in proportion to their respective liquidation
preferences of Registrable Preferred Stock or Exchange Preferred Stock
registered pursuant to this Agreement, and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each Participant and to each Person, if any, who controls any Participant within
the meaning of the Securities Act or the Exchange Act; and the obligations of
the Participant under this Section shall be in addition to any liability which
the respective Participant otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each Person,
if any, who controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. Rules 144 and 144A.
------------------
The Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder in a timely manner in accordance with the
requirements of the Securities Act and the Exchange Act and such rules and
regulations and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Preferred Stock,
make publicly available annual reports and such information, documents and other
reports of the type specified in Sections 13 and 15(d) of the Exchange Act. The
-29-
Company further covenants for so long as any Registrable Preferred Stock remains
outstanding, to make available to any Holder or beneficial owner of Registrable
Preferred Stock in connection with any sale thereof and any prospective
purchaser of such Registrable Preferred Stock from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Registrable Preferred Stock pursuant to Rule
144A.
9. Underwritten Registrations.
--------------------------
If any of the Registrable Preferred Stock covered by any Shelf Registration
is to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority of shares of such Registrable Preferred Stock
included in such offering and reasonably acceptable to the Company.
No Holder of Registrable Preferred Stock may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Preferred Stock on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Representations and Warranties.
------------------------------
The Company represents and warrants to, and agrees with, each Initial
Purchaser and each of the Holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Preferred Stock and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to this Agreement and any further amendments or
supplements to any such registration statement or prospectus, when it becomes
effective or is filed with the SEC, as the case may be, and, in the case of an
underwritten offering of Registrable Preferred Stock, at the time of the closing
under the underwriting agreement relating thereto, will conform in all material
respects to the requirements of the Securities Act and the TIA and the
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rules and regulations of the SEC and any such registration statement and any
amendment thereto will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and any such prospectus or any
amendment or supplement thereto will not include any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and at all times subsequent to the time of
effectiveness of any such registration statement when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such time
as a notice has been given to holders of Registrable Preferred Stock pursuant to
the last paragraph of Section 5 or Section 5(k) hereof until (ii) such time as
the Company furnishes an amended or supplemented prospectus pursuant to Section
5(k) hereof or otherwise gives an Advice, each such registration statement, and
each prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 5(k) or Section 5(g) hereof, as then amended or
supplemented, will conform in all material respects to the requirements of the
Securities Act and the TIA and the rules and regulations of the SEC and will not
include any untrue statement of any material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; provided,
--------
however, that this representation and warranty does not apply to any statements
-------
or omissions from a registration statement or prospectus (including any
preliminary or summary prospectus) based upon written information furnished to
the Company by any underwriter, sales agent, Holder or Participating Broker-
Dealer specifically for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the SEC, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will include or included an untrue
statement of any material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty does not
-------- -------
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apply to any statements or omissions from a registration statement or the
prospectus (including any preliminary or summary prospectus) based upon written
information furnished to the Company by any underwriter, sales agent, Holder or
Participating Broker-Dealer specifically for use therein.
(c) The issuance and sale of the Registrable Preferred Stock did not and
will not, and the execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not, result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation, order or policy of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, the Senior Credit Facility as defined in the Purchase Agreement or
any other agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to which the
Company or any such subsidiary has agreed to become bound, or to which any of
the properties of the Company or any such subsidiary is subject, or the charter
or by-laws (or other constituent document) of the Company or any such
subsidiary.
11. Miscellaneous
-------------
(a) No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Preferred Stock in this
Agreement or otherwise conflicts with the provisions hereof. The Company has
not entered and will not enter into any agreement with respect to any of its
securities that will grant to any Person piggyback registration rights with
respect to a Registration Statement.
(b) Adjustments Affecting Registrable Preferred Stock. The Company shall
-------------------------------------------------
not, directly or indirectly, take any action with respect to the Registrable
Preferred Stock as a class that would adversely affect the ability of the
Holders of Registrable Preferred Stock to include such Registrable Preferred
Stock in a registration undertaken pursuant to this Agreement.
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(c) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and (A) the Holders of not less than a majority of
liquidation preference of the then outstanding Registrable Preferred Stock and
(B) in circumstances that would adversely affect the Participating Broker-
Dealers, the Participating Broker-Dealers holding not less than a majority of
liquidation preference of the Exchange Preferred Stock held by all Participating
Broker-Dealers; provided, however, that Section 7 and this Section 11(c) may not
-------- -------
be amended, modified or supplemented without the prior written consent of the
Company and each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable
Preferred Stock or Exchange Preferred Stock, as the case may be, disposed of
pursuant to any Registration Statement). Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Preferred Stock
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Preferred Stock may be given by Holders of at
least a majority of shares of the Registrable Preferred Stock being sold by such
Holders pursuant to such Registration Statement; provided, however, that the
-------- -------
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence. For
purposes only of this subsection (c), "Registrable Preferred Stock" also
includes outstanding PIK Preferred Stock that has not yet been exchanged for
Registrable Preferred Stock.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or facsimile:
(1) if to a Holder of the Registrable Preferred Stock or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, on the stock books of the Company with a copy
in like manner to the Initial Purchasers as follows:
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CREDIT SUISSE FIRST BOSTON CORPORATION,
CONSECO LIFE INSURANCE COMPANY,
AMERICAN TRAVELLERS LIFE INSURANCE CO.,
GREAT AMERICAN RESERVE INSURANCE CO.
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investment Banking Department
Transactions Advisory Group
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchasers, at the addresses specified in Section
11(d)(1);
(3) if to the Company, at the addresses as follows:
American Tower Systems Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ & Worcester
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage
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prepaid, if mailed; one business day after being timely delivered to a next-day
air courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
-------- -------
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Preferred Stock.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without
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including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the consent
------------------------------------------------
or approval of Holders of a specified percentage of shares of Registrable
Preferred Stock is required hereunder, shares of Registrable Preferred Stock
held by the Company or its affiliates (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Preferred Stock
-------------------------
and Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement and the Certificate of Designation, is intended by the parties as a
final and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein and any and
all prior oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Company on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
-36-
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
AMERICAN TOWER SYSTEMS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
CONSECO LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
AMERICAN TRAVELLERS LIFE INSURANCE CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
GREAT AMERICAN RESERVE INSURANCE CO
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
