EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
AMERICAN TOWER CORPORATION,
ASTEROID MERGER SUB, LLC
AND
SPECTRASITE, INC.
DATED AS OF MAY 3, 2005
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TABLE OF CONTENTS
PAGE
ARTICLE I
THE MERGER
SECTION 1.1. THE MERGER........................................................2
SECTION 1.2. EFFECTIVE TIME; CLOSING...........................................2
SECTION 1.3. EFFECT OF THE MERGER..............................................2
SECTION 1.4. CERTIFICATE OF FORMATION AND OPERATING AGREEMENT..................3
SECTION 1.5. MANAGERS AND OFFICERS.............................................3
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE PROCEDURES
SECTION 2.1. EFFECT ON SHARES..................................................3
SECTION 2.2. STOCK OPTIONS; WARRANTS...........................................4
SECTION 2.3. RESTRICTED STOCK..................................................6
SECTION 2.4. EXCHANGE OF CERTIFICATES..........................................6
SECTION 2.5. STOCK TRANSFER BOOKS..............................................9
SECTION 2.6. FORMS OF SPECTRASITE OPTIONS AND SPECTRASITE RESTRICTED
STOCK AWARDS......................................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPECTRASITE
SECTION 3.1. ORGANIZATION AND STANDING.........................................9
SECTION 3.2. CAPITALIZATION...................................................10
SECTION 3.3. AUTHORITY FOR AGREEMENT..........................................11
SECTION 3.4. NO CONFLICT......................................................12
SECTION 3.5. REQUIRED FILINGS AND CONSENTS....................................13
SECTION 3.6. COMPLIANCE; REGULATORY COMPLIANCE................................13
SECTION 3.7. SEC FILINGS; FINANCIAL STATEMENTS................................14
SECTION 3.8. ABSENCE OF CERTAIN CHANGES OR EVENTS.............................16
SECTION 3.9. TAXES............................................................16
SECTION 3.10. CHANGE OF CONTROL AGREEMENT; NO EXCESS PARACHUTE PAYMENT........17
SECTION 3.11. LITIGATION......................................................17
SECTION 3.12. CONTRACTS AND COMMITMENTS.......................................18
SECTION 3.13. INFORMATION SUPPLIED............................................19
SECTION 3.14. EMPLOYEE BENEFIT PLANS..........................................20
SECTION 3.15. LABOR AND EMPLOYMENT MATTERS....................................21
SECTION 3.16. ENVIRONMENTAL COMPLIANCE AND DISCLOSURE.........................22
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SECTION 3.17. INTELLECTUAL PROPERTY...........................................24
SECTION 3.18. STOCKHOLDERS' RIGHTS AGREEMENT..................................25
SECTION 3.19. BROKERS.........................................................25
SECTION 3.20. INSURANCE.......................................................25
SECTION 3.21. FOREIGN CORRUPT PRACTICES ACT AND INTERNATIONAL
TRADE SANCTIONS.................................................25
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF ATC AND MERGER SUB
SECTION 4.1. ORGANIZATION AND STANDING........................................26
SECTION 4.2. CAPITALIZATION...................................................27
SECTION 4.3. AUTHORITY FOR AGREEMENT..........................................28
SECTION 4.4. NO CONFLICT......................................................29
SECTION 4.5. REQUIRED FILINGS AND CONSENTS....................................30
SECTION 4.6. COMPLIANCE; REGULATORY COMPLIANCE................................30
SECTION 4.7. SEC FILINGS; FINANCIAL STATEMENTS................................31
SECTION 4.8. ABSENCE OF CERTAIN CHANGES OR EVENTS.............................32
SECTION 4.9. TAXES............................................................33
SECTION 4.10. CHANGE OF CONTROL AGREEMENT; NO EXCESS PARACHUTE PAYMENT........34
SECTION 4.11. LITIGATION......................................................34
SECTION 4.12. CONTRACTS AND COMMITMENTS.......................................34
SECTION 4.13. INFORMATION SUPPLIED............................................36
SECTION 4.14. EMPLOYEE BENEFIT PLANS..........................................36
SECTION 4.15. LABOR AND EMPLOYMENT MATTERS....................................38
SECTION 4.16. ENVIRONMENTAL COMPLIANCE AND DISCLOSURE.........................39
SECTION 4.17. INTELLECTUAL PROPERTY...........................................40
SECTION 4.18. STOCKHOLDERS' RIGHTS AGREEMENT..................................40
SECTION 4.19. BROKERS.........................................................40
SECTION 4.20. INSURANCE.......................................................41
SECTION 4.21. FOREIGN CORRUPT PRACTICES ACT AND INTERNATIONAL
TRADE SANCTIONS.................................................41
ARTICLE V
COVENANTS
SECTION 5.1. CONDUCT OF SPECTRASITE'S BUSINESS PENDING THE MERGER.............41
SECTION 5.2. CONDUCT OF ATC'S BUSINESS PENDING THE MERGER.....................44
SECTION 5.3. ACCESS TO INFORMATION; CONFIDENTIALITY...........................46
SECTION 5.4. NOTIFICATION OF CERTAIN MATTERS..................................46
SECTION 5.5. FURTHER ASSURANCES...............................................47
SECTION 5.6. NO SOLICITATION..................................................48
SECTION 5.7. STOCKHOLDER LITIGATION...........................................53
SECTION 5.8. INDEMNIFICATION..................................................54
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SECTION 5.9. PUBLIC ANNOUNCEMENTS.............................................54
SECTION 5.10. REGISTRATION STATEMENT; JOINT PROXY STATEMENT...................55
SECTION 5.11. STOCKHOLDERS' MEETINGS..........................................55
SECTION 5.12. CONTRIBUTION OF ASSETS AND LIABILITIES AFTER EFFECTIVE TIME.....56
SECTION 5.13. NYSE LISTING AND DE-LISTING.....................................57
SECTION 5.14. COMPOSITION OF BOARD OF DIRECTORS OF ATC........................57
SECTION 5.15. TAX TREATMENT OF MERGER.........................................57
SECTION 5.16. ACCOUNTANT LETTERS..............................................57
SECTION 5.17. CONSENTS AND/OR AMENDMENTS OF CERTAIN BANK LENDERS..............58
SECTION 5.18. CONSENT SOLICITATION; SUPPLEMENTAL INDENTURE; TENDER OFFER......59
SECTION 5.19. AFFILIATES......................................................59
SECTION 5.20. STANDSTILL AGREEMENTS; CONFIDENTIALITY AGREEMENTS...............59
SECTION 5.21. WARRANT AGREEMENT...............................................59
SECTION 5.22. EMPLOYEES.......................................................60
ARTICLE VI
CONDITIONS
SECTION 6.1. CONDITIONS TO THE OBLIGATION OF EACH PARTY.......................61
SECTION 6.2. CONDITIONS TO OBLIGATIONS OF ATC AND MERGER SUB TO
EFFECT THE MERGER................................................61
SECTION 6.3. CONDITIONS TO OBLIGATIONS OF SPECTRASITE TO EFFECT THE MERGER....62
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1. TERMINATION......................................................63
SECTION 7.2. EFFECT OF TERMINATION............................................64
SECTION 7.3. AMENDMENTS.......................................................67
SECTION 7.4. WAIVER...........................................................68
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. NO THIRD PARTY BENEFICIARIES.....................................68
SECTION 8.2. ENTIRE AGREEMENT.................................................68
SECTION 8.3. SUCCESSION AND ASSIGNMENT........................................68
SECTION 8.4. COUNTERPARTS.....................................................69
SECTION 8.5. HEADINGS.........................................................69
SECTION 8.6. GOVERNING LAW; JURISDICTION......................................69
SECTION 8.7. SEVERABILITY; JURISDICTION.......................................69
SECTION 8.8. SPECIFIC PERFORMANCE.............................................69
SECTION 8.9. CONSTRUCTION.....................................................70
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SECTION 8.10. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES
AND AGREEMENTS..................................................70
SECTION 8.11. CERTAIN DEFINITIONS.............................................70
SECTION 8.12. NOTICES.........................................................71
SECTION 8.13. PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER.......72
SECTION 8.14. WAIVER OF JURY TRIAL............................................72
SECTION 8.15. SPECTRASITE DISCLOSURE LETTER AND ATC DISCLOSURE LETTER.........72
EXHIBIT 1.4(a) -- Certificate of Formation
EXHIBIT 1.4(b) -- Operating Agreement
EXHIBIT 5.19 -- Affiliate Letter
EXHIBIT 6.2(i) -- Tax Certificate for ATC
EXHIBIT 6.2(ii) -- Tax Certificate for SpectraSite
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INDEX OF DEFINED TERMS
DEFINED TERM SECTION
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2.25% ATC Notes........................................................4.2(a)
3.0% ATC Notes.........................................................4.2(a)
3.25% ATC Notes........................................................4.2(a)
5.0% ATC Notes.........................................................4.2(a)
2003 Plan .............................................................2.2(a)
Agreement............................................................Preamble
ATC..................................................................Preamble
ATC Adverse Recommendation Change..................................5.6(b)(ii)
ATC Aquisition Agreement...........................................5.6(b)(ii)
ATC Benefit Plan......................................................4.14(a)
ATC Benefit Plans ....................................................4.14(a)
ATC ByLaws ............................................................4.1(b)
ATC Certificate of Incorporation.......................................4.1(b)
ATC Class A Common Stock...............................................4.2(a)
ATC Class B Common Stock ..............................................4.2(a)
ATC Class C Common Stock ..............................................4.2(a)
ATC Common Stock.......................................................4.2(a)
ATC Convertible Notes .................................................4.2(a)
ATC Disclosure Letter..............................................Article IV
ATC Expenses ......................................................7.2(d)(ii)
ATC Filed SEC Reports..................................................4.7(a)
ATC Financial Statements ..............................................4.7(b)
ATC Independent Advisor................................................4.3(e)
ATC Intellectual Property Rights .....................................4.17(b)
ATC Material Contract ................................................4.12(a)
ATC Notice of Adverse Recommendation...............................5.6(b)(ii)
ATC Pension Plan......................................................4.14(a)
ATC Pension Plans ....................................................4.14(a)
ATC Preferred Stock....................................................4.2(a)
ATC Restricted Stock ..................................................4.2(a)
ATC SEC Reports........................................................4.7(a)
ATC Stock Plans........................................................4.2(a)
ATC Stockholder Approval ..............................................4.3(a)
ATC Shareholders Meeting .............................................5.10(a)
ATC Subsidiaries.......................................................4.2(d)
ATC Superior Proposal...............................................5.6(b)(i)
ATC Takeover Proposal ..............................................5.6(b)(i)
ATC Termination Fee.................................................7.2(c)(i)
ATC Warrants...........................................................4.2(a)
ATC Welfare Plan......................................................4.14(a)
ATC Welfare Plans.....................................................4.14(a)
CERCLA................................................................3.16(b)
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Certificate............................................................2.1(a)
Certificate of Merger.....................................................1.2
Closing ..................................................................1.2
Code ................................................................Preamble
Combined Company Material Adverse Effect...............................5.5(e)
Communications Act .......................................................3.5
Concerted Action .....................................................3.15(a)
Confidentiality Agreement..............................................5.3(a)
Covered Employee......................................................5.22(a)
D&O Insurance .........................................................5.8(b)
DGCL.................................................................Preamble
DLLC Act ............................................................Preamble
DOJ ...................................................................5.5(c)
Effective Time ...........................................................1.2
Environmental Laws ...................................................3.16(h)
ERISA.................................................................3.14(a)
Exchange Act..............................................................3.5
Exchange Agent.........................................................2.4(a)
Exchange Fund..........................................................2.4(a)
Exchange Ratio ........................................................2.1(a)
FAA.......................................................................3.5
FCC.......................................................................3.5
FTC ...................................................................5.5(c)
GAAP...................................................................3.7(b)
Governmental Entity.......................................................3.5
Hazardous Material....................................................3.16(i)
HSR Act...................................................................3.5
Indemnified Parties ...................................................5.8(a)
Intellectual Property.................................................3.17(b)
Joint Proxy Statement ................................................5.10(a)
Judgments .............................................................6.1(c)
Law ......................................................................3.4
Liens..................................................................3.2(c)
Litigation............................................................3.11(a)
Material Adverse Effect...............................................8.11(b)
Merger.............................................................. Preamble
Merger Consideration ..................................................2.1(a)
Merger Sub...........................................................Preamble
Merger Sub Units.......................................................2.1(c)
New Plan..............................................................5.22(d)
New SpectraSite Holdco...................................................5.12
NLRB..................................................................3.15(a)
NYSE...................................................................2.4(e)
Order ....................................................................3.4
Protected Period ......................................................2.2(a)
Real Estate Transfer Taxes ............................................7.2(b)
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Registration Statement ...............................................5.10(a)
Replacement Credit Agreement..........................................5.17(a)
Representatives .......................................................5.3(a)
Xxxxxxxx-Xxxxx Act ....................................................3.7(a)
SEC ...................................................................2.2(e)
Securities Act ...........................................................3.5
Shares.................................................................2.1(a)
SpectraSite .........................................................Preamble
SpectraSite Acquisition Agreement................................. 5.6(a)(ii)
SpectraSite Adverse Recommendation Change..........................5.6(a)(ii)
SpectraSite Bank Amendment ...........................................5.17(a)
SpectraSite Benefit Plan .............................................3.14(a)
SpectraSite Benefit Plans.............................................3.14(a)
SpectraSite Bylaws ....................................................3.1(b)
SpectraSite Certificate of Incorporation ..............................3.1(b)
SpectraSite Common Stock ............................................Preamble
SpectraSite Credit Agreement..........................................5.17(a)
SpectraSite Disclosure Letter.....................................Article III
SpectraSite Expenses ..............................................7.2(c)(ii)
SpectraSite Filed SEC Reports .........................................3.7(a)
SpectraSite Options....................................................2.2(a)
SpectraSite Option Agreement ..........................................2.2(a)
SpectraSite SEC Reports................................................3.7(a)
SpectraSite Financial Statements.......................................3.7(b)
SpectraSite Indenture ...................................................5.18
SpectraSite Independent Advisor........................................3.3(c)
SpectraSite Intellectual Property Rights .............................3.17(b)
SpectraSite Material Contract ........................................3.12(a)
SpectraSite Notes .......................................................5.18
SpectraSite Notice of Adverse Recommendation...................... 5.6(a)(ii)
SpectraSite Options....................................................2.2(a)
SpectraSite Pension Plan..............................................3.14(a)
SpectraSite Pension Plans ............................................3.14(a)
SpectraSite Preferred Stock ...........................................3.2(a)
SpectraSite SEC Reports................................................3.7(a)
SpectraSite Stock Option Plans ........................................2.2(a)
SpectraSite Stockholder Approval.......................................3.3(a)
SpectraSite Stockholders' Meeting.....................................5.10(a)
SpectraSite Subsidiaries...............................................3.2(c)
SpectraSite Superior Proposal.......................................5.6(a)(i)
SpectraSite Takeover Proposal ......................................5.6(a)(i)
SpectraSite Termination Fee.........................................7.2(d)(i)
SpectraSite Warrants...................................................2.2(c)
SpectraSite Welfare Plan .............................................3.14(a)
SpectraSite Welfare Plans.............................................3.14(a)
Stock Rights ..........................................................3.2(b)
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Subsidiary ...............................................................3.1
Substitute Option .....................................................2.2(a)
Supplemental Indenture ..................................................5.18
Surviving Company ...................................................Preamble
tax....................................................................3.9(h)
tax return ............................................................3.9(h)
Third Party Intellectual Property Rights .............................3.17(b)
Trustee..................................................................5.18
Warrant Agreement........................................................5.21
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of May
3, 2005, is by and among AMERICAN TOWER CORPORATION, a Delaware corporation
("ATC"), ASTEROID MERGER SUB, LLC, a Delaware limited liability company ("MERGER
SUB") and a direct wholly owned Subsidiary of ATC, and SpectraSite, Inc., a
Delaware corporation ("SPECTRASITE").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of this Agreement
and in accordance with the General Corporation Law of the State of Delaware (the
"DGCL") and the Limited Liability Company Act of the State of Delaware (the
"DLLC ACT"), ATC and SpectraSite will enter into a business combination
transaction pursuant to which SpectraSite will merge with and into Merger Sub
(the "MERGER"), with Merger Sub as the surviving entity (the "SURVIVING
COMPANY");
WHEREAS, the Board of Directors of SpectraSite (i) has determined that
the Merger is consistent with and in furtherance of the long-term business
strategy of SpectraSite, and in the best interests of SpectraSite and the
holders of its common stock, par value $0.01 per share (the "SPECTRASITE COMMON
STOCK"), and has approved and adopted this Agreement, the Merger and the other
transactions contemplated by this Agreement and declared its advisability and
(ii) has recommended that the stockholders of SpectraSite approve and adopt this
Agreement and the Merger;
WHEREAS, the Board of Directors of ATC (i) has determined that the
Merger is consistent with and in furtherance of the long-term business strategy
of ATC, and in the best interests of ATC and its stockholders and has approved
and adopted this Agreement, the Merger and the other transactions contemplated
by this Agreement and declared its advisability and (ii) has recommended that
the stockholders of ATC approve the issuance of ATC Common Stock in connection
with the Merger and the other transactions contemplated hereby;
WHEREAS, the Board of Managers of Merger Sub (i) has determined that
the Merger is in the best interests of Merger Sub and its sole member and has
approved and adopted this Agreement, the Merger and the other transactions
contemplated by this Agreement and declared its advisability and (ii) has
recommended that ATC, as the sole member of Merger Sub, approve and adopt this
Agreement and the Merger;
WHEREAS, ATC, in its capacity as sole member of Merger Sub, has
approved and adopted this Agreement and the Merger by unanimous written consent
in accordance with the requirements of the DLLC Act;
WHEREAS, ATC may, prior to the Merger, contribute all of the membership
units of interest in Merger Sub to another limited liability company wholly
owned by ATC; and
WHEREAS, for U.S. federal income tax purposes, it is intended by ATC,
Merger Sub and SpectraSite that (a) the Merger shall qualify as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "CODE"), and the rules
and regulations promulgated thereunder, (b) this Agreement shall constitute a
plan of reorganization, and (c) ATC and SpectraSite shall each be a party to
such reorganization within the meaning of Section 368(b) of the Code;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained in this
Agreement and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
Section 1.1. THE MERGER. Upon the terms and subject to the conditions
of this Agreement, and in accordance with the DGCL and the DLLC Act, at the
Effective Time, SpectraSite shall be merged with and into Merger Sub. As a
result of the Merger, the separate corporate existence of SpectraSite shall
cease and Merger Sub shall continue as the Surviving Company following the
Merger. The existence of Merger Sub shall continue unaffected and unimpaired by
the Merger and, as the Surviving Company, it shall be governed by the Laws of
the State of Delaware. At the option of ATC and in lieu of the otherwise
applicable provisions of this Section 1.1, the Merger will consist of the merger
of Merger Sub with and into SpectraSite, with SpectraSite as the Surviving
Company; provided, that ATC shall not be entitled to exercise such right to the
extent that it would result in the failure to be satisfied of the conditions set
forth in either Section 6.2(d) or 6.3(d). In the event that ATC makes such an
election, the parties shall discuss in good faith and use reasonable best
efforts to agree on appropriate amendments to the representations, warranties,
covenants and other agreements contained herein to give effect to such change;
provided, that if the parties do not so agree then the Merger shall be
structured in the manner described in the first two sentences of this paragraph.
Section 1.2. EFFECTIVE TIME; CLOSING. As promptly as practicable (and
in any event within three (3) business days) after the satisfaction or waiver of
the conditions set forth in Article VI hereof (other than those conditions that
by their nature are to be satisfied at the Closing), the parties hereto shall
cause the Merger to be consummated by filing a certificate of merger (the
"CERTIFICATE OF MERGER"), with the Secretary of State of the State of Delaware
and by making all other filings or recordings required under the DGCL or the
DLLC Act in connection with the Merger, in such form as is required by, and
executed in accordance with the relevant provisions of, the DGCL or the DLLC
Act, as applicable. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of the State of
Delaware, or at such other time as the parties hereto agree and as shall be
specified in the Certificate of Merger (the date and time the Merger becomes
effective, the "EFFECTIVE TIME"). On the date of such filing, a closing (the
"CLOSING") shall be held at 9:00 a.m., Eastern Time, at the offices of King &
Spalding LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, or at such other
time and location as the parties hereto shall otherwise agree.
Section 1.3. EFFECT OF THE MERGER. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of the DGCL and the
DLLC Act. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time, except as otherwise
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provided herein, all the property, rights, privileges, powers and franchises of
SpectraSite and Merger Sub shall vest in the Surviving Company, and all debts,
liabilities, obligations, restrictions, disabilities and duties of SpectraSite
and Merger Sub shall become the debts, liabilities, obligations, restrictions,
disabilities and duties of the Surviving Company.
Section 1.4. CERTIFICATE OF FORMATION AND OPERATING AGREEMENT.
(a) The Certificate of Formation of Merger Sub in effect immediately
preceding the Effective Time, which shall be in the form set forth in Exhibit
1.4(a), shall be the Certificate of Formation of the Surviving Company until
thereafter changed or amended as provided therein or by applicable Law.
(b) The Operating Agreement of Merger Sub in effect immediately
preceding the Effective Time, which shall be in the form set forth in Exhibit
1.4(b), shall be the Operating Agreement of the Surviving Company, until
thereafter changed or amended or as provided therein or by applicable Law.
Section 1.5. MANAGERS AND OFFICERS. From and after the Effective Time,
until the earlier of their resignation or removal or until their respective
successors are duly elected or appointed and qualified in accordance with
applicable Law, (a) the members of the board of managers of Merger Sub at the
Effective Time shall be the members of the board of managers of the Surviving
Company, and (b) the officers of Merger Sub at the Effective Time shall be the
officers of the Surviving Company.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE PROCEDURES
Section 2.1. EFFECT ON SHARES. At the Effective Time, by virtue of the
Merger and without any action on the part of ATC, Merger Sub, SpectraSite or the
holders of any of the following securities:
(a) Subject to the other provisions of this Section 2.1, each share
of SpectraSite Common Stock (collectively, the "SHARES") issued and outstanding
immediately prior to the Effective Time (other than Shares canceled pursuant to
Section 2.1(b)) shall be canceled and shall by virtue of the Merger and without
any action on the part of the holder thereof be converted automatically into the
right to receive 3.575 (the "EXCHANGE Ratio") shares of ATC Class A Common Stock
(the "MERGER CONSIDERATION"). At the Effective Time, all Shares converted
pursuant to this Section 2.1(a) shall no longer be outstanding and shall
automatically be canceled and retired and cease to exist, and each holder of a
certificate ("CERTIFICATE") representing any such Shares shall cease to have any
rights with respect thereto, except the right to receive the Merger
Consideration in accordance with this Section 2.1(a).
(b) Each Share held in treasury of SpectraSite and each Share owned
directly by ATC, in each case immediately prior to the Effective Time, shall be
canceled without any conversion thereof, and no payment or distribution shall be
made with respect thereto.
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(c) Each membership unit of interest in Merger Sub (the "MERGER SUB
UNITS") issued and outstanding immediately prior to the Effective Time shall
remain outstanding and unaffected by the Merger as identical units of interest
in the Surviving Company and, following the Merger, shall constitute the only
outstanding units of interest or other equity interests in the Surviving Company
from and after the Effective Time.
Section 2.2. STOCK OPTIONS; WARRANTS.
(a) ATC, effective as of the Effective Time, shall assume by
operation of this Agreement the SpectraSite 2003 Equity Incentive Plan and the
SpectraSite 2005 Equity Incentive Plan (together, the "SPECTRASITE STOCK OPTION
PLANS"), and all stock options (the "SPECTRASITE OPTIONS") outstanding, whether
or not exercisable and whether or not vested, at the Effective Time under the
SpectraSite Stock Option Plans, shall remain outstanding following the Effective
Time. The consummation of the transactions contemplated by this Agreement shall
result in the vesting (or other lapsing of similar restrictions in
exercisability) of unvested options granted under the SpectraSite Stock Option
Plans that are outstanding immediately prior to the Effective Time on the same
terms and conditions as were applicable under, and only to the extent expressly
provided for by the terms of, the SpectraSite Stock Option Plans and the related
SpectraSite Options as outstanding and in effect on the date hereof or issued
after the date hereof to the extent permitted by Section 5.1(b) (but taking into
account any changes thereto provided for in the SpectraSite Stock Options Plans
or in the SpectraSite Options (x) by reason of this Agreement or the
transactions contemplated hereby or (y) to the extent permitted in accordance
with Section 5.1(c)(vii)). The parties acknowledge that, under the terms of the
SpectraSite Stock Option Plans, immediately prior to the Effective Time, the
Board of Directors of SpectraSite will determine whether the SpectraSite
Performance Options (as defined in each stock option agreement for SpectraSite
Stock Options (a "SPECTRASITE OPTION AGREEMENT")) that are unvested immediately
prior to the Effective Time will become vested upon the Effective Time, which
determination shall be made in accordance with the terms of the SpectraSite
Options and the SpectraSite Stock Option Plans. Notwithstanding the foregoing,
the parties agree that if any SpectraSite Option provides for a Service Option
(as defined in such SpectraSite Option Agreement), such Service Option will vest
if the employment of the holder of such SpectraSite Option is terminated without
Cause (as "Cause" is defined in the SpectraSite 2003 Equity Incentive Plan (the
"2003 PLAN")) at any time after the Effective Time but before the end of the one
(1) year period which starts at the Effective Time (the "PROTECTED PERIOD") or
the employment of such SpectraSite Option holder terminates as a result of such
SpectraSite Option holder's resignation for Good Reason (as "Good Reason" is
defined in the 2003 Plan) during the Protected Period. At the Effective Time,
the SpectraSite Options shall, by virtue of the Merger and without any further
action on the part of SpectraSite or the holder thereof, be assumed by ATC in
such manner that ATC (i) is a corporation "assuming a stock option in a
transaction to which Section 424(a) applies" within the meaning of Section 424
of the Code and the regulations thereunder or (ii) to the extent that Section
424 of the Code does not apply to any such SpectraSite Options, would be such a
corporation were Section 424 of the Code applicable to any such SpectraSite
Options. From and after the Effective Time, all references to SpectraSite in the
SpectraSite Stock Option Plans and the applicable stock option agreements issued
thereunder shall be deemed to refer to ATC. Each SpectraSite Option assumed by
ATC (each, a "SUBSTITUTE OPTION") shall be exercisable upon the same terms and
conditions as under the SpectraSite Stock Option Plans and the applicable option
agreement issued thereunder, except that (A) each such
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Substitute Option shall be exercisable for, and represent the right to acquire,
that whole number of shares of ATC Common Stock (rounded down to the nearest
whole share) equal to the aggregate number of shares of SpectraSite Common Stock
subject to such SpectraSite Option multiplied by the Exchange Ratio; and (B) the
option price per share of ATC Common Stock shall be an amount equal to the
option price per share of SpectraSite Common Stock subject to such SpectraSite
Option in effect immediately prior to the Effective Time divided by the Exchange
Ratio (the option price per share, as so determined, being rounded upward to the
nearest full cent). Such Substitute Option shall otherwise be subject to the
same terms and conditions as such SpectraSite Option.
(b) As soon as practicable after the Effective Time, ATC shall
deliver, or cause to be delivered, to each holder of a Substitute Option an
appropriate notice setting forth such holder's rights pursuant thereto and such
Substitute Option shall continue in effect on the same terms and conditions
(including any antidilution provisions, and subject to the adjustments required
by this Section 2.2 after giving effect to the Merger). ATC shall take all
corporate action necessary to reserve for issuance a sufficient number of shares
of ATC Common Stock for delivery upon exercise of Substitute Options pursuant to
the terms set forth in this Section 2.2. ATC shall use reasonable best efforts
to prepare and file with the SEC and to cause to be effective prior to or at the
Effective Time a registration statement on Form S-8 (or another appropriate
form) registering under the SpectraSite Stock Option Plans all shares of ATC
Common Stock subject to the Substitute Options. ATC shall use reasonable best
efforts to keep such registration statement effective and to keep the current
status of the prospectus required thereby maintained as long as Substitute
Options remain outstanding. In addition, ATC shall use reasonable best efforts
to cause the shares of ATC Common Stock subject to Substitute Options to be
listed on the NYSE.
(c) As of the Effective Time, by virtue of the Merger and the
conversion of the issued and outstanding shares of SpectraSite Common Stock
pursuant to Section 2.1(a) above, and without any action on the part of
SpectraSite or ATC or the holder of the warrants issued and outstanding in
connection with SpectraSite's Plan of Reorganization that became effective on
February 10, 2003, granting holders thereof the right to purchase shares of
SpectraSite Common Stock (the "SPECTRASITE WARRANTS"), each SpectraSite Warrant
issued and outstanding immediately prior to the Effective Time shall, in
accordance with and subject to the applicable provisions of such SpectraSite
Warrant (i) remain outstanding after the Effective Time and (ii) be exercisable
in accordance with the terms of such SpectraSite Warrant.
(d) Section 2.2(d) of the SpectraSite Disclosure Letter (hereinafter
defined) sets forth a complete and correct list, as of May 2, 2005, of all
SpectraSite Options, the number of shares of SpectraSite Common Stock (or other
capital stock of SpectraSite) subject thereto, the grant dates, expiration
dates, the exercise or base prices and vesting schedules thereof and the names
of the holders thereof.
(e) On or after the date of this Agreement and prior to the
Effective Time, each of ATC and SpectraSite shall take all necessary actions as
may be required to cause any dispositions of SpectraSite Common Stock (including
derivative securities with respect to SpectraSite Common Stock) or acquisitions
of ATC Common Stock (including derivative securities with respect to ATC Common
Stock) resulting from the transactions contemplated by this Agreement by each
director or officer who is subject to the reporting requirements of
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Section 16(a) of the Exchange Act, to be exempt from the short-swing profit
liability rules of Section 16(b) of the Exchange Act pursuant to Rule 16b-3
promulgated thereunder. Such actions shall be consistent with all current
applicable interpretation and guidance of the United States Securities and
Exchange Commission (the "SEC"), including, but not limited to, the No-Action
letter dated January 12, 1999, issued by the SEC to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP.
Section 2.3. RESTRICTED STOCK. Any shares of SpectraSite Common Stock
outstanding immediately prior to the Effective Time that are subject to a
repurchase option or risk of forfeiture under the SpectraSite Stock Option Plans
shall, by operation of this Agreement, be exchanged for shares of ATC Common
Stock on the same terms and conditions as the shares of SpectraSite Common Stock
that are not subject to any repurchase option or risk of forfeiture in
accordance with Section 2.1; PROVIDED, HOWEVER, that, to the extent that such
shares do not, by their terms, become vested and cease to be subject to any such
repurchase option or risk of forfeiture as a result of the consummation of the
transactions contemplated by this Agreement, such shares shall, following the
Effective Time, be subject to the same repurchase option or risk of forfeiture
as set forth in the agreement pursuant to which such shares were granted.
Section 2.3 of the SpectraSite Disclosure Letter sets forth a complete and
correct list, as of the date hereof, of all SpectraSite Common Stock subject to
any such repurchase option or other risk of forfeiture, the grant dates,
expiration dates of such repurchase options or other risk of forfeiture or
"vesting schedules" thereof and the names of the holders thereof.
Section 2.4. EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. At or prior to the Effective Time, ATC shall
deposit, or shall cause to be deposited, with a bank or trust company that may
be designated by ATC as exchange agent (the "EXCHANGE AGENT"), for the benefit
of the holders of Shares, for exchange in accordance with this Article II
through the Exchange Agent, (i) certificates representing the shares of ATC
Common Stock issuable pursuant to Section 2.1(a), and (ii) cash, from time to
time as required to make payments in lieu of any fractional shares pursuant to
Section 2.4(e) (such cash and certificates for shares of ATC Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "EXCHANGE FUND"). The Exchange Agent shall,
pursuant to irrevocable instructions, deliver the shares of ATC Common Stock and
cash contemplated to be issued pursuant to Section 2.1(a) and this Section
2.4(a) out of the Exchange Fund. Except as contemplated by Section 2.4(g)
hereof, the Exchange Fund shall not be used for any other purpose.
(b) EXCHANGE PROCEDURES. As promptly as practicable after the
Effective Time, ATC shall cause the Exchange Agent to mail to each person who
was, at the Effective Time, a holder of record of Shares entitled to receive the
Merger Consideration pursuant to Section 2.1(a): (i) a letter of transmittal
(which shall be in customary form and shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
proper delivery of the Certificates to the Exchange Agent) and (ii) instructions
for use in effecting the surrender of the Certificates pursuant to such letter
of transmittal. Upon surrender to the Exchange Agent of a Certificate for
cancellation, together with such letter of transmittal, duly completed and
validly executed in accordance with the instructions thereto, and such other
documents as may be required pursuant to such instructions, the holder of such
Certificate shall be entitled to receive in exchange therefor: (A) a certificate
representing that number of whole shares of ATC Common
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Stock which such holder has the right to receive in respect of the Shares
formerly represented by such Certificate after taking into account all Shares
then held by such holder, and (B) cash in lieu of any fractional shares of ATC
Common Stock to which such holder is entitled pursuant to Section 2.4(e) and any
dividends or other distributions to which such holder is entitled pursuant to
Section 2.4(c), and the Certificate so surrendered shall forthwith be cancelled.
No interest will be paid or will accrue on any cash payable pursuant to Section
2.4(c) or (e). In the event of a transfer of ownership of Shares that is not
registered in the transfer records of SpectraSite, a certificate representing
the proper number of shares of ATC Common Stock and a check for cash in lieu of
any fractional shares of ATC Common Stock to which such holder is entitled
pursuant to Section 2.4(e) and for any dividends or other distributions to which
such holder is entitled pursuant to Section 2.4(c) may be issued to a transferee
if the Certificate representing such Shares is presented to the Exchange Agent,
accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 2.4, each Certificate shall be
deemed at all times after the Effective Time to represent only the right to
receive upon such surrender the Merger Consideration, the cash in lieu of any
fractional shares of ATC Common Stock to which such holder is entitled pursuant
to Section 2.4(e) and any dividends or other distributions to which such holder
is entitled pursuant to Section 2.4(c).
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends
or other distributions declared or made after the Effective Time with respect to
the ATC Common Stock with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Certificate with respect to the shares of
SpectraSite Common Stock represented thereby, until the holder of such
Certificate shall surrender such Certificate. Subject to the effect of escheat,
tax or other applicable Laws, following surrender of any such Certificate, there
shall be paid to the holder of the certificates representing whole shares of ATC
Common Stock issued in exchange therefor, without interest, (i) promptly, the
amount of dividends or other distributions with a record date after the
Effective Time and theretofore paid with respect to such whole shares of ATC
Common Stock, and (ii) at the appropriate payment date, the amount of dividends
or other distributions, with a record date after the Effective Time but prior to
surrender and a payment date occurring after surrender, payable with respect to
such whole shares of ATC Common Stock.
(d) NO FURTHER RIGHTS IN SPECTRASITE COMMON STOCK. All cash paid and
shares of ATC Common Stock issued upon conversion of the Shares in accordance
with the terms of this Article II (including any cash paid pursuant to Section
2.4(c) or (e)) shall be deemed to have been paid and issued in full satisfaction
of all rights pertaining to such Shares.
(e) NO FRACTIONAL SHARES. No certificates or script representing
fractional shares of ATC Common Stock shall be issued upon the surrender for
exchange of Certificates, and such fractional shares interests will not entitle
the owner thereof to vote or to any other rights of a stockholder of ATC. Each
holder of Shares exchanged pursuant to the Merger who would otherwise be
entitled to receive a fraction of a share of ATC Common Stock (after taking into
account all Certificates delivered by such holder) shall receive, upon surrender
of such holder's Certificates in accordance with this Section 2.4, an amount in
cash (without interest) equal to the product obtained by multiplying (i) such
fractional share interest to which such holder would otherwise be entitled by
(ii) the average of the per share closing prices on the New York Stock
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Exchange (the "NYSE") of shares of ATC Common Stock during the ten (10)
consecutive trading days ending on (and including) the trading day immediately
preceding the date of the Effective Time. As promptly as practicable after the
determination of the amount of cash, if any, to be paid to holders of fractional
share interests, the Exchange Agent shall so notify ATC, and ATC shall deposit
such amount with the Exchange Agent and shall cause the Exchange Agent to
forward payments to such holders of fractional share interests subject to and in
accordance with the terms of Section 2.4(b).
(f) ADJUSTMENTS TO EXCHANGE RATIO. The Exchange Ratio shall be
adjusted to reflect appropriately the effect of any stock split, reverse stock
split, stock dividend (including any dividend or distribution of securities
convertible into ATC Common Stock or SpectraSite Common Stock), cash dividends,
reorganization, recapitalization, reclassification, combination, exchange of
shares or other like change with respect to ATC Common Stock or SpectraSite
Common Stock occurring on or after the date hereof and prior to the Effective
Time.
(g) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
(including any interest received with respect thereto) that remains
undistributed to the holders of the SpectraSite Common Stock for one year after
the Effective Time shall be delivered to ATC, upon demand, and any holders of
the SpectraSite Common Stock who have not theretofore complied with this Article
II shall thereafter look solely to ATC with respect to the Merger Consideration
payable or issuable upon due surrender of their Certificates, and any other cash
amounts payable pursuant to this Article II, without any interest thereon. Any
portion of the Exchange Fund remaining unclaimed by holders of Shares as of a
date which is immediately prior to such times as such amounts would otherwise
escheat to or become property of any Governmental Entity shall, to the extent
permitted by applicable Law, become the property of ATC free and clear of any
claims or interest of any person previously entitled thereto.
(h) NO LIABILITY. Neither the Exchange Agent nor any party hereto
shall be liable to any holder of Certificates for any such Shares (or dividends
or distributions with respect thereto), or cash delivered to a public official
pursuant to any abandoned property, escheat or similar Law.
(i) WITHHOLDING RIGHTS. Each of the Surviving Company, ATC and the
Exchange Agent shall be entitled to deduct and withhold from the Merger
Consideration otherwise payable pursuant to this Agreement to any holder of
Shares such amounts as it is required to deduct and withhold with respect to the
making of such payment under the Code, or any provision of federal, state, local
or foreign tax Law. To the extent that amounts are so withheld by ATC or the
Exchange Agent, as the case may be, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the holder of the Shares
in respect to which such deduction and withholding was made by ATC or the
Exchange Agent, as the case may be.
(j) LOST CERTIFICATES. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
ATC, the posting by such person of a bond, in such reasonable amount as ATC may
direct, as indemnity against any claim that may be made against it with respect
to such Certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed Certificate the Merger Consideration, any cash in lieu of
fractional shares of ATC Common Stock to which the holders thereof are entitled
pursuant to Section 2.4(e) and any
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dividend or other distributions to which the holders thereof are entitled
pursuant to Section 2.4(c).
Section 2.5. STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of SpectraSite shall be closed and there shall be no further
registration of transfers of Shares thereafter on the records of SpectraSite.
From and after the Effective Time, the holders of Certificates representing
Shares outstanding immediately prior to the Effective Time shall cease to have
any rights with respect to such Shares, except as otherwise provided in this
Agreement or by Law. On or after the Effective Time, any Certificates presented
to the Exchange Agent or ATC for any reason shall be converted into the right to
receive the Merger Consideration, any cash in lieu of fractional shares of ATC
Common Stock to which the holders thereof are entitled pursuant to Section
2.4(e) and any dividends or other distributions to which the holders thereof are
entitled pursuant to Section 2.4(c).
Section 2.6. FORMS OF SPECTRASITE OPTIONS AND SPECTRASITE RESTRICTED
STOCK AWARDS. Prior to the date hereof, SpectraSite has made available to ATC
correct and complete copies of the form of each stock option agreement or
restricted stock award that evidences any outstanding SpectraSite Options,
restricted stock grants or other compensatory stock awards, and no stock option
agreement or restricted stock purchase agreement or other award agreement that
governs any such SpectraSite Options, restricted stock grants or other
compensatory stock awards contains terms that are materially inconsistent with
such forms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SPECTRASITE
SpectraSite represents and warrants to each of the other parties hereto
as follows (except (i) as set forth in the written disclosure letter (which
letter shall in each case specifically identify by reference to Sections of this
Agreement any exceptions to each of the representations, warranties and
covenants contained in this Agreement; PROVIDED, HOWEVER, that any information
set forth in one section of such disclosure letter shall be deemed to apply to
each other Section or subsection thereof or hereof to which its relevance is
readily apparent on its face) delivered by SpectraSite to ATC and Merger Sub in
connection with the execution and delivery of this Agreement (the "SPECTRASITE
DISCLOSURE LETTER") or (ii) as disclosed in the SpectraSite SEC Reports filed or
furnished to the SEC by SpectraSite, and in either case, publicly available on
or after January 1, 2005 and prior to the date hereof, but excluding any risk
factor disclosure contained in any such SpectraSite SEC Reports under the
heading "Risk Factors" or "Special Note Regarding Forward-Looking Statements"):
Section 3.1. ORGANIZATION AND STANDING.
(a) SpectraSite is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation. SpectraSite
has made available to ATC complete and correct copies of the minutes (or, in the
case of minutes that have not yet been finalized, drafts thereof) of all
meetings of the stockholders of SpectraSite, the Board of Directors of
SpectraSite and the committees of Boards of Directors of SpectraSite, in each
case held since February 10, 2003 and prior to the date hereof.
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(b) (i) Each SpectraSite Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, and (ii) each of SpectraSite and each SpectraSite
Subsidiary (A) has full corporate (or similar) power and authority and all
necessary government approvals to own, lease and operate its properties and
assets and to conduct its business as presently conducted, and (B) is duly
qualified or licensed to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its business makes such qualification
or licensing necessary, except in the case of clauses (b)(i) and (b)(ii), where
any such failure has not had, or would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. SpectraSite has
furnished or made available to ATC true and complete copies of the Third Amended
and Restated Certificate of Incorporation of SpectraSite ("SPECTRASITE
CERTIFICATE OF INCORPORATION") and the Third Amended and Restated Bylaws of
SpectraSite (the "SPECTRASITE BYLAWS"). The SpectraSite Certificate of
Incorporation and the SpectraSite Bylaws are in full force and effect and have
not been amended or otherwise modified. SpectraSite is not in material violation
of any provision of the SpectraSite Certificate of Incorporation or the
SpectraSite Bylaws, and no SpectraSite Subsidiary is in material violation of
any provision of its certificate of incorporation, bylaws or equivalent
organizational documents.
For purposes of this Agreement a "SUBSIDIARY" of any person means
another person, (i) an amount of the voting securities, other voting rights or
voting partnership interests of which that is sufficient to elect at least a
majority of its board of directors or other governing body is directly or
indirectly owned or controlled by such first person or by any one or more of its
Subsidiaries, or by such first person and one or more of its Subsidiaries (or,
if there are no such voting interests, 50% or more of the equity interests of
which is owned directly or indirectly by such first person) or (ii) of which
such first person or any other Subsidiary of such first person is a general
partner (excluding partnerships, the general partnership interests of which held
by such first person and any Subsidiary of such first person do not have a
majority of the voting interests in such partnership).
Section 3.2. CAPITALIZATION.
(a) The authorized capital stock of SpectraSite consists of (i)
250,000,000 shares of SpectraSite Common Stock and (ii) 40,000,000 shares of
preferred stock, par value $.01 per share ("SPECTRASITE PREFERRED STOCK"). At
the close of business on May 2, 2005, (A) 46,924,616 shares of SpectraSite
Common Stock were issued and outstanding, all of which were validly issued,
fully paid and nonassessable and free of preemptive rights, (B) 3,679,881 shares
of SpectraSite Common Stock were held by SpectraSite in its treasury, (C)
3,398,622 shares of SpectraSite Common Stock were reserved for issuance pursuant
to the SpectraSite 2003 Equity Incentive Plan, of which 3,206,979 shares of
SpectraSite Common Stock were subject to outstanding and unexercised SpectraSite
Options, (D) no shares of SpectraSite Common Stock were reserved for issuance
pursuant to the SpectraSite 2005 Equity Incentive Plan, of which no shares of
SpectraSite Common Stock were subject to outstanding SpectraSite Options, (E)
1,996,831 shares of SpectraSite Common Stock were reserved for issuance upon
exercise of the SpectraSite Warrants and (F) 7,500 of the issued and outstanding
shares of SpectraSite Common Stock were subject to vesting, contractual
restrictions on transfer or repurchase rights. At the close of business on May
2, 2005, no shares of SpectraSite Preferred Stock were issued
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and outstanding and no shares of SpectraSite Preferred Stock were held in the
treasury of SpectraSite.
(b) Except as set forth above, as of the date hereof there are no
options, warrants, convertible or exchangeable securities, subscriptions, stock
appreciation rights, phantom stock plans or stock equivalents or other rights,
agreements, arrangements or commitments (contingent or otherwise) of any
character issued or authorized by SpectraSite or any SpectraSite Subsidiary
relating to the issued or unissued capital stock or equity interest of
SpectraSite or any SpectraSite Subsidiary or obligating SpectraSite or any
SpectraSite Subsidiary to issue or sell any shares of capital stock of, or
options, warrants, convertible or exchangeable securities, subscriptions or
other equity interests (collectively, "STOCK RIGHTS") in SpectraSite or any
SpectraSite Subsidiary. All shares of SpectraSite Common Stock subject to
issuance as aforesaid, upon issuance on the terms and conditions specified in
the instruments pursuant to which they are issuable, will be duly authorized,
validly issued, fully paid and nonassessable. There are no outstanding
contractual obligations of SpectraSite or any SpectraSite Subsidiary to
repurchase, redeem or otherwise acquire any capital stock or equity interest of
SpectraSite (including any Shares of SpectraSite Common Stock) or any
SpectraSite Subsidiary or any Stock Rights or to pay any dividend or make any
other distribution in respect thereof or to provide funds to, or make any
investment (in the form of a loan, capital contribution or otherwise) in, any
person.
(c) Exhibit 21.1 to SpectraSite's Annual Report on Form 10-K for the
fiscal year ended December 31, 2004 includes all the Subsidiaries of SpectraSite
(the "SPECTRASITE SUBSIDIARIES") in existence as of the date hereof. All the
outstanding shares of capital stock of, or other equity interests in, each such
SpectraSite Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and are, except as set forth in such Exhibit 21.1,
owned directly or indirectly by SpectraSite, free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "Liens") and free of any other restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests), except for restrictions
imposed by applicable securities laws. As of the date of this Agreement, neither
SpectraSite nor any of the SpectraSite Subsidiaries directly or indirectly owns
or has any right or obligation to subscribe for or otherwise acquire any equity
or similar interest in, or any interest convertible into or exchangeable or
exercisable for, any corporation, partnership, joint venture or other business
association or entity (other than the SpectraSite Subsidiaries).
Section 3.3. AUTHORITY FOR AGREEMENT.
(a) SpectraSite has all necessary corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and,
subject to obtaining the SpectraSite Stockholder Approval (as defined below) in
connection with this Agreement and the Merger, to consummate the Merger and the
other transactions contemplated by this Agreement. The execution, delivery and
performance by SpectraSite of this Agreement, and the consummation by
SpectraSite of the Merger and the other transactions contemplated by this
Agreement, have been duly authorized by all necessary corporate action on the
part of SpectraSite and no other corporate proceedings on the part of
SpectraSite are necessary to authorize this Agreement or to consummate the
Merger or the other transactions contemplated by this Agreement (other than
obtaining the SpectraSite Stockholder Approval and the filing and recordation of
appropriate
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merger documents as required by the DGCL and the DLLC Act). This Agreement has
been duly executed and delivered by SpectraSite and, assuming the due
authorization, execution and delivery by ATC and Merger Sub, constitutes a
legal, valid and binding obligation of SpectraSite enforceable against
SpectraSite in accordance with its terms subject, as to enforcement of remedies,
to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the rights and remedies of creditors generally and to the effect of general
principles of equity. The affirmative vote of a majority of the outstanding
shares of SpectraSite Common Stock entitled to vote in accordance with the DGCL,
the SpectraSite Certificate of Incorporation and the SpectraSite Bylaws (the
"SPECTRASITE STOCKHOLDER APPROVAL") is the only vote of the holders of capital
stock of SpectraSite necessary to approve this Agreement, the Merger and the
other transactions contemplated by this Agreement.
(b) The Board of Directors of SpectraSite has unanimously (i)
determined that this Agreement and the other transactions contemplated hereby,
including the Merger, are advisable and in the best interests of SpectraSite and
SpectraSite's stockholders, (ii) approved and adopted this Agreement and the
transactions contemplated hereby, including the Merger, and (iii) resolved to
recommend approval and adoption of this Agreement and the Merger by
SpectraSite's stockholders which, in each case, has not been subsequently
rescinded, modified or withdrawn prior to the execution and delivery of this
Agreement by SpectraSite. The actions taken by the Board of Directors of
SpectraSite constitute approval of the Merger, this Agreement and the other
transactions contemplated hereby by the Board of Directors of SpectraSite under
the provisions of Section 203 of the DGCL such that Section 203 of the DGCL does
not apply to this Agreement, or the transactions contemplated hereby. Other than
Section 203 of the DGCL, no state anti-takeover or similar statute is applicable
to the Merger, this Agreement or any of the transactions contemplated by this
Agreement.
(c) Each of Evercore Group Inc. and Xxxxxx Brothers Inc. (together,
the "SPECTRASITE INDEPENDENT ADVISORS") has delivered to the Board of Directors
of SpectraSite its opinion to the effect that, as of the date of such opinion
and based on the assumptions, qualifications and limitations contained therein,
the Exchange Ratio is fair, from a financial point of view, to the holders of
SpectraSite Common Stock. SpectraSite has made available to ATC a correct and
complete copy of the form of each such opinion prior to the execution of this
Agreement.
Section 3.4. NO CONFLICT. The execution and delivery of this Agreement
by SpectraSite do not, and the performance of this Agreement by SpectraSite and
the consummation of the Merger and the other transactions contemplated by this
Agreement will not, (a) assuming the SpectraSite Stockholder Approval is
obtained, conflict with or violate (i) the SpectraSite Certificate of
Incorporation or the SpectraSite Bylaws or (ii) the equivalent organizational
documents of any of the SpectraSite Subsidiaries, (b) subject to Section 3.5 and
assuming the SpectraSite Stockholder Approval is obtained, conflict with or
violate any United States federal, state or local or any foreign statute, law,
rule, regulation, ordinance, code or any other requirement or rule of law (a
"LAW") or any charge, order, writ, injunction, judgment, decree, ruling,
determination, directive, award or settlement, whether civil, criminal or
administrative (an "ORDER"), in each case applicable to SpectraSite or any of
the SpectraSite Subsidiaries or by which any property or asset of SpectraSite or
any of the SpectraSite Subsidiaries is bound or affected, or (c) result in a
breach of or constitute a default (or an event which with notice or lapse
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of time or both would become a default) under, give to others any right of
termination, amendment, acceleration or cancellation of, result in the
triggering of any payment or other obligation or any right of consent, or result
in the creation of a Lien on any property or asset of SpectraSite or any of the
SpectraSite Subsidiaries pursuant to any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which SpectraSite or any of the SpectraSite Subsidiaries is a
party or by which SpectraSite or any of the SpectraSite Subsidiaries or any
property or asset of any of them is bound or affected (including any SpectraSite
Material Contract), except, in the case of clauses (a)(ii), (b) and (c) above,
for any such conflicts, violations, breaches, defaults or other occurrences
which have not had and would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
Section 3.5. REQUIRED FILINGS AND CONSENTS. The execution and delivery
of this Agreement by SpectraSite do not, and the performance of this Agreement
by SpectraSite will not, require any consent, approval, order, authorization or
permit of, or declaration, registration, filing with, or notification to, any
United States federal, state or local or any foreign government or any court,
administrative or regulatory agency or commission or other governmental
authority or agency, domestic or foreign (a "GOVERNMENTAL ENTITY"), except for
(i) applicable requirements, if any, of (A) the Securities Act of 1933, as
amended (the "SECURITIES ACT"), and the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), including, without limitation, the filing with the
SEC of the Joint Proxy Statement and of the Registration Statement in which the
Joint Proxy Statement will be included as a prospectus, and declaration of
effectiveness of the Registration Statement, (B) state securities or "blue sky"
laws, (C) the DGCL and the DLLC Act to file the Certificate of Merger or other
appropriate documentation, (D) the New York Stock Exchange, (ii) those required
by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR ACT"), (iii) such filings and approvals as are required to be made or
obtained under any foreign antitrust, competition or similar Laws in connection
with the consummation of the Merger and the other transactions contemplated by
this Agreement, (iv) the filing of customary applications and notices, as
applicable, (A) with the Federal Aviation Administration ("FAA"), and any
approvals of such applications and notices, or (B) with the Federal
Communications Commission (the "FCC") under the Communications Act of 1934, as
amended (the "COMMUNICATIONS ACT"), and any approvals of such applications and
notices, which, in the case of this clause (iv), are required or appropriate
with respect to the transactions contemplated by this Agreement and related to
SpectraSite's ownership or operation of communications or broadcast towers and
the assets and properties relating thereto, (v) receipt of the SpectraSite
Stockholder Approval and the ATC Stockholder Approval, and (vi) customary
filings, notices and approvals with any state public service, public utility
commissions, state environmental agencies or similar state regulatory bodies
with respect to the transactions contemplated by this Agreement and related to
the consummation of the Merger and the other transactions contemplated by this
Agreement as a result of SpectraSite's ownership or operation of communications
or broadcast towers and the assets and properties relating thereto.
Section 3.6. COMPLIANCE; REGULATORY COMPLIANCE.
(a) Each of SpectraSite and the SpectraSite Subsidiaries (i) has
been operated at all times in compliance with all Laws applicable to SpectraSite
or any of the SpectraSite Subsidiaries or by which any property, business or
asset of SpectraSite or any of the SpectraSite
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Subsidiaries is bound or affected and (ii) is not in default or violation of any
governmental licenses, permits or franchises to which SpectraSite or any of the
SpectraSite Subsidiaries is a party or by which SpectraSite or any of the
SpectraSite Subsidiaries or any property or asset of SpectraSite or any of the
SpectraSite Subsidiaries is bound or affected other than, in the case of clauses
(i) and (ii) above, failures to comply, defaults or violations which do not have
and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
(b) Each of SpectraSite and the SpectraSite Subsidiaries has in
effect all required governmental licenses, permits, certificates, approvals and
authorizations necessary for the conduct of their business and the use of their
properties and assets, as presently conducted and used, except where such
failure has not had, or would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; and neither SpectraSite nor any
SpectraSite Subsidiary has received notice from any Governmental Entity that any
such license, permit, certificate, approval or authorization is subject to any
adverse action which has had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(c) This Section 3.6 does not relate to tax matters, employee
benefits matters, labor relations matters, or environmental matters which are
the subjects of Sections 3.9, 3.14, 3.15 and 3.16, respectively.
Section 3.7. SEC FILINGS; FINANCIAL STATEMENTS.
(a) Each of SpectraSite and the SpectraSite Subsidiaries has filed
all forms, reports, statements and documents required to be filed with the SEC
since February 10, 2003 (the "SPECTRASITE SEC REPORTS"), each of which has
complied in all material respects with the applicable requirements of the
Securities Act and the rules and regulations promulgated thereunder, the
Exchange Act, and the rules and regulations promulgated thereunder, each as in
effect on the date so filed, except to the extent updated, amended, restated or
corrected by a subsequent SpectraSite SEC Report filed or furnished to the SEC
by SpectraSite, and in either case, publicly available prior to the date hereof
(each, a "SPECTRASITE FILED SEC REPORT"). None of the SpectraSite SEC Reports
(including, any financial statements or schedules included or incorporated by
reference therein) contained when filed, and any SpectraSite SEC Reports filed
with the SEC subsequent to the date hereof will not contain, any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except to the extent
updated, amended, restated or corrected by a subsequent SpectraSite Filed SEC
Report. The principal executive officer of SpectraSite and the principal
financial officer of SpectraSite (and each former principal executive officer of
SpectraSite and each former principal financial officer of SpectraSite, as
applicable) have made the certifications required by Sections 302 and 906 of,
and SpectraSite has complied in all material respects with, the Xxxxxxxx-Xxxxx
Act of 2002 (the "XXXXXXXX-XXXXX ACT"), and the rules and regulations of the SEC
promulgated thereunder with respect to SpectraSite's filings pursuant to the
Exchange Act. For purposes of the preceding sentence, "principal executive
officer" and "principal financial officer" shall have the meanings given to such
terms in the Xxxxxxxx-Xxxxx Act.
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(b) Except to the extent updated, amended, restated or corrected by
a subsequent SpectraSite Filed SEC Report, all of the financial statements
included in the SpectraSite SEC Reports, in each case, including any related
notes thereto, as filed with the SEC (those filed with the SEC are collectively
referred to as the "SPECTRASITE FINANCIAL STATEMENTS"), have been prepared in
accordance with U.S. generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto or, in the case of the unaudited statements, as
may be permitted by Form 10-Q of the SEC and subject, in the case of the
unaudited statements, to normal, year-end audit adjustments which would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect). The consolidated balance sheets (including the related notes)
included in such SpectraSite Financial Statements (if applicable, as updated,
amended, restated or corrected in a subsequent SpectraSite Filed SEC Report)
fairly present, in all material respects, the consolidated financial position of
SpectraSite and the SpectraSite Subsidiaries at the respective dates thereof,
and the consolidated statements of operations, stockholders' equity and cash
flows (in each case, including the related notes) included in such SpectraSite
Financial Statements (if applicable, as updated, amended, restated or corrected
in a subsequent SpectraSite Filed SEC Report) fairly present, in all material
respects, the consolidated statements of operations, stockholders' equity and
cash flows of SpectraSite and the SpectraSite Subsidiaries for the periods
indicated, subject, in the case of the unaudited statements, to normal, year-end
audit adjustments which would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(c) SpectraSite has designed and maintains a system of "internal
control over financial reporting" (as defined in Rules 13a-15(f) and 15d-15(f)
of the Exchange Act) sufficient to provide reasonable assurances regarding the
reliability of financial reporting.
(d) SpectraSite's "disclosure controls and procedures" (as defined
in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are reasonably designed to
ensure that all material information (both financial and non-financial) required
to be disclosed by SpectraSite in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the rules and forms of the SEC, and that all such
information is accumulated and communicated to SpectraSite's management as
appropriate to allow timely decisions regarding required disclosure and to make
the certifications of the chief executive officer and chief financial officer of
SpectraSite required under the Exchange Act with respect to such reports.
(e) Neither SpectraSite nor any of the SpectraSite Subsidiaries has
any liabilities or obligations of any kind whatsoever, whether or not accrued
and whether or not contingent or absolute, that are material to SpectraSite and
the SpectraSite Subsidiaries, taken as a whole, other than (i) liabilities or
obligations disclosed or provided for in the consolidated balance sheet of
SpectraSite and the SpectraSite Subsidiaries as of December 31, 2004, including
the notes thereto, contained in the SpectraSite Filed SEC Reports, (ii)
liabilities or obligations incurred on behalf of SpectraSite in connection with
this Agreement and the contemplated Merger, (iii) liabilities or obligations
incurred in the ordinary course of business consistent with past practice since
January 1, 2005, and (iv) other liabilities or obligations that are not
otherwise covered by insurance that were not, or would not reasonably be
expected to be, material and adverse to the businesses of SpectraSite and the
SpectraSite Subsidiaries, taken as a whole.
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Section 3.8. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
contemplated by this Agreement, since January 1, 2005, each of SpectraSite and
the SpectraSite Subsidiaries has conducted its respective businesses only in the
ordinary course in all material respects and in a manner consistent with prior
practice in all material respects and there has not been any event or occurrence
of any condition that has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Except as
contemplated by this Agreement, since January 1, 2005 and through the date
hereof, there has not been (i) any material change in accounting methods,
principles or practices employed by SpectraSite or (ii) any action of the types
described in Sections 5.1(b) or 5.1(c) which, had such action been taken after
the date of this Agreement, would be in violation of any such Section.
Section 3.9. TAXES.
(a) Each of SpectraSite and the SpectraSite Subsidiaries has duly
filed all tax returns and reports required to be filed by it or has been granted
extensions to file such returns or reports, which extensions have not expired,
except to the extent that all such failures to file, taken together, have not
had and would not reasonably be expected to have a Material Adverse Effect.
SpectraSite and each of the SpectraSite Subsidiaries have paid (or SpectraSite
has paid on its behalf) all taxes (i) shown as due on such returns or (ii)
otherwise due and payable, except for those taxes (x) being contested in good
faith by appropriate proceedings and for which adequate reserves have been
established in the financial statements included in the SpectraSite Filed SEC
Reports in accordance with GAAP or (y) that have not had and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. There are no Liens for any taxes upon the assets of SpectraSite
or the SpectraSite Subsidiaries, other than (i) statutory Liens for taxes not
yet due and payable, (ii) Liens for taxes contested in good faith by appropriate
proceedings and (iii) Liens that are not, and would not reasonably be expected
to be, material to the businesses of SpectraSite and the SpectraSite
Subsidiaries, taken as a whole.
(b) No deficiencies for any taxes have been proposed, asserted or
assessed in writing against SpectraSite or any of the SpectraSite Subsidiaries
that are not adequately reserved for, except for deficiencies that, individually
or in the aggregate, have not had and would not reasonably be expected to have a
Material Adverse Effect, and no requests for waivers of the time to assess any
such taxes have been granted or are pending (other than with respect to years
that are currently under examination by the Internal Revenue Service or other
applicable taxing authorities).
(c) Neither SpectraSite nor any of the SpectraSite Subsidiaries has
taken any action or has any knowledge of any fact or circumstance that is
reasonably likely to prevent the transactions contemplated hereby, including the
Merger, from qualifying as a reorganization within the meaning of Section 368 of
the Code.
(d) Neither SpectraSite nor any of the SpectraSite Subsidiaries has
constituted either a "distributing corporation" or a "controlled corporation"
(within the meaning of Section 355(a)(1)(A)) in a distribution of stock
qualifying for tax-free treatment under Section 355 of the Code (i) in the two
years prior to the date of this Agreement or (ii) in a distribution which could
otherwise constitute part of a "plan" or "series of related transactions"
(within the meaning of Section 355(e) of the Code) in conjunction with the
Merger.
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(e) Neither SpectraSite nor any of the SpectraSite Subsidiaries has
entered into a "listed transaction" within the meaning of Treasury Regulation
ss.1.6011-4(b)(2).
(f) SpectraSite and the SpectraSite Subsidiaries have complied with
all applicable Laws relating to the payment and withholding of taxes, except
where a failure to comply, individually or in the aggregate, has not had and
would not reasonably be expected to have a Material Adverse Effect.
(g) Neither SpectraSite nor any of the SpectraSite Subsidiaries has
any liability for the taxes of any person (other than SpectraSite and the
SpectraSite Subsidiaries) under Treasury Regulation ss. 1.1502-6 (or any similar
provision of any state, local or foreign law) as a transferee or successor, by
contract or otherwise that, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect.
(h) As used in this Agreement (A) "TAX" means any federal, state,
local or foreign income, gross receipts, property, sales, use, license, excise,
franchise, employment, payroll, premium, withholding, alternative or added
minimum, ad valorem, transfer or excise tax, or any other tax, duty,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any related interest, penalty, addition to tax or additional
amount, and any liability for any of the foregoing as transferee, and (B) "TAX
RETURN" means any report, return, document, declaration or other information or
filing required to be filed with respect to taxes (whether or not a payment is
required to be made with respect to such filing), including information returns,
any documents with respect to or accompanying payments of estimated taxes, or
with respect to or accompanying requests for the extension of time in which to
file any such report, return, document, declaration or other information.
Section 3.10. CHANGE OF CONTROL AGREEMENT; NO EXCESS PARACHUTE PAYMENT.
Neither the execution and delivery of this Agreement nor the consummation of the
Merger or the other transactions contemplated by this Agreement will (either
alone or in conjunction with any other event) result in, cause the accelerated
vesting or delivery of, or increase the amount or value of, any payment or
benefit to any director, officer or employee of SpectraSite or any SpectraSite
Subsidiary. No amount paid or payable by SpectraSite or any SpectraSite
Subsidiary in connection with the Merger or the other transactions contemplated
by this Agreement, including accelerated vesting of options (either solely as a
result thereof or as a result of such transactions in conjunction with any other
event), will be an "excess parachute payment" within the meaning of Section 280G
of the Code. Neither SpectraSite nor any SpectraSite Subsidiary has any
obligation to pay or otherwise reimburse any person for paying any tax imposed
under Section 4999 of the Code.
Section 3.11. LITIGATION.
(a) There are no claims, suits, actions, investigations, indictments
or information, or administrative, arbitration or other proceedings
("LITIGATION") that which, if adversely determined, individually or in the
aggregate would reasonably be expected to have a Material Adverse Effect. There
is no suit, action or proceeding (including in connection with the consummation
of the Merger) pending or, to the knowledge of SpectraSite, threatened, against
or affecting SpectraSite or any of the SpectraSite Subsidiaries or any of their
respective assets that,
-17-
individually or in the aggregate, has had or would reasonably be expected to
have a Material Adverse Effect.
(b) There is not any Order of any Governmental Entity or arbitrator
outstanding against, or, to the knowledge of SpectraSite, investigation by, any
Governmental Entity involving SpectraSite or any of the SpectraSite Subsidiaries
or any of their respective assets that, individually or in the aggregate, has
had or would reasonably be expected to have a Material Adverse Effect.
(c) This Section 3.11 does not relate to tax matters, employee
benefits matters, labor relations matters, or environmental matters which are
the subjects of Sections 3.9, 3.14, 3.15 and 3.16, respectively.
Section 3.12. CONTRACTS AND COMMITMENTS.
(a) Section 3.12(a) of the SpectraSite Disclosure Letter sets forth
a true and complete list as of the date hereof of each SpectraSite Material
Contract. "SPECTRASITE MATERIAL CONTRACT" means (i) a "material contract", as
such term is defined in Section 601(b)(10) of Regulation S-K of the SEC, (ii) a
contract, agreement or arrangement which contains any non-compete or exclusivity
provisions with respect to the business of or geographic area with respect to
SpectraSite or any SpectraSite Subsidiary, or restricts the conduct of the
business of SpectraSite or any SpectraSite Subsidiary, or the geographic area or
manner in which SpectraSite or any SpectraSite Subsidiary may conduct business,
in each case in any material respect, (iii) a contract, agreement or arrangement
between SpectraSite or any SpectraSite Subsidiary on the one hand, and any
officer, director or person directly or indirectly owning, controlling or
holding power to vote 5% or more of SpectraSite's outstanding voting securities
(other than compensation arrangements involving a director or officer of
SpectraSite listed or described in Section 3.14 of the SpectraSite Disclosure
Letter), on the other hand, or (iv) a contract, agreement or arrangement to
which SpectraSite or any SpectraSite Subsidiary or any of their respective
properties is subject that (A) involves annual revenue to SpectraSite or the
SpectraSite Subsidiaries in excess of $5,000,000 in the calendar year ending
December 31, 2005, (B) obligates SpectraSite or any SpectraSite Subsidiary to
expend an amount in excess of $5,000,000 in the calendar year ending December
31, 2005, (C) obligates SpectraSite or any SpectraSite Subsidiary to make
capital expenditures or acquire assets (including by way of construction,
including in a "build to suit" or similar agreement, or acquisition of
communications towers) in an amount estimated by SpectraSite as of the date
hereof to be in excess of $5,000,000 over the remaining life of such contract or
(D) is a material arrangement governing the legal relationship between
SpectraSite or any SpectraSite Subsidiary and one of the ten largest customers
of SpectraSite and any SpectraSite Subsidiaries, taken as a whole, for the
calendar year ended December 31, 2004. SpectraSite has delivered or made
available true and complete copies of all such agreements, arrangements and
commitments to ATC.
(b) Except as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, the SpectraSite Material
Contracts are legal, valid, binding and enforceable in accordance with their
respective terms with respect to SpectraSite and, to the knowledge of
SpectraSite, with respect to each other party to any of such SpectraSite
Material Contracts, except, in each case, to the extent that enforcement of
rights and remedies created by
-18-
any SpectraSite Material Contracts are subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar Laws of general
application related to or affecting creditors' rights and to general equity
principles. There are no existing defaults, violations or breaches by
SpectraSite or any SpectraSite Subsidiary of any notes, bonds, mortgages,
indentures, contracts, agreements or leases to which SpectraSite or any of the
SpectraSite Subsidiaries is a party or by which SpectraSite or any of the
SpectraSite Subsidiaries or any property or asset of SpectraSite or any of the
SpectraSite Subsidiaries is bound or affected, including any SpectraSite
Material Contract (or events or conditions which, with notice or lapse of time
or both would constitute such a default, violation or breach) and, to the
knowledge of SpectraSite, there are no such defaults, violations or breaches (or
events or conditions which, with notice or lapse of time or both, would
constitute such a default, violation or breach) with respect to any third party
to any such notes, bonds, mortgages, indentures, contracts, agreements or leases
that, in any such case, has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. SpectraSite has no
knowledge of any pending or threatened bankruptcy, insolvency or similar
proceeding with respect to any party to any SpectraSite Material Contract which
has had or would reasonably be expected to have a Material Adverse Effect.
Section 3.12(b) of the SpectraSite Disclosure Letter identifies each SpectraSite
Material Contract set forth therein that requires the consent of or notice to
the other party thereto to avoid any material breach, default or violation of
such contract, agreement or other instrument in connection with the transactions
contemplated hereby. Neither SpectraSite nor any SpectraSite Subsidiary is a
party to any voting agreement with respect to the voting of any securities of
SpectraSite. Neither SpectraSite nor any SpectraSite Subsidiary has any
contractual obligation to file a registration statement under the Securities
Act, in respect of any securities of SpectraSite or any SpectraSite Subsidiary.
Section 3.13. INFORMATION SUPPLIED. The information supplied or to be
supplied by SpectraSite for inclusion or incorporation by reference in the
Registration Statement and the Joint Proxy Statement shall not, at (i) the time
the Registration Statement is declared effective, (ii) the time the Joint Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed to
the stockholders of SpectraSite and ATC, (iii) the time of the SpectraSite
Stockholders' Meeting and (iv) the Effective Time, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading. If, at anytime
prior to the Effective Time, any event or circumstance relating to SpectraSite
or any SpectraSite Subsidiary, or their respective officers or directors, should
be discovered by SpectraSite which should be set forth in an amendment or
supplement to the Registration Statement or Joint Proxy Statement, SpectraSite
shall promptly inform ATC. All documents that SpectraSite is responsible for
filing with the SEC in connection with the Merger or the other transactions
contemplated by this Agreement will comply as to form and substance in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations thereunder and the Exchange Act and the rules and
regulations thereunder. Notwithstanding the foregoing, no representation or
warranty is made by SpectraSite with respect to statements made or incorporated
by reference therein based on information supplied by ATC or Merger Sub for
inclusion or incorporation by reference in the Registration Statement or Joint
Proxy Statement.
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Section 3.14. EMPLOYEE BENEFIT PLANS.
(a) Section 3.14 of the SpectraSite Disclosure Letter sets forth a
list as of the date hereof of all "employee pension benefit plans" (as defined
in Section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) under which SpectraSite or any SpectraSite Subsidiaries has
any liability (sometimes referred to individually as a "SPECTRASITE PENSION
PLAN" and collectively as the "SPECTRASITE PENSION PLANS"), all "employee
welfare benefit plans" (as defined in Section 3(1) of ERISA) under which
SpectraSite or any SpectraSite Subsidiaries has any liability (sometimes
referred to individually as a "SPECTRASITE WELFARE PLAN" and collectively as the
"SPECTRASITE WELFARE PLANS"), and each vacation or paid time off, severance,
termination, change in control, employment, incentive compensation, profit
sharing, stock option, fringe benefit, stock purchase, stock ownership, phantom
stock, deferred compensation plans, arrangements or agreements and other
employee fringe benefit plans or arrangements maintained, contributed to or
required to be maintained or contributed to by SpectraSite or any SpectraSite
Subsidiaries for the benefit of any present or former officers, employees,
directors or independent contractors of SpectraSite or any of the SpectraSite
Subsidiaries and under which SpectraSite or any SpectraSite Subsidiaries has any
actual or contingent material liabilities (each of the foregoing being referred
to individually as a "SPECTRASITE BENEFIT PLAN" and each of the foregoing
together with the SpectraSite Pension Plan and SpectraSite Welfare Plans being
referred to collectively as the "SPECTRASITE BENEFIT PLANS").
(b) SpectraSite has made available to ATC true and complete copies
of (1) each SpectraSite Benefit Plan (or, in the case of any unwritten
SpectraSite Benefit Plan, a summary of the material provisions of such plan) in
effect on the date hereof, (2) the most recent report on Form 5500 filed with
the Internal Revenue Service with respect to each SpectraSite Benefit Plan in
effect on the date hereof to the extent any such report was required by
applicable Law, (3) the most recent summary plan description for each
SpectraSite Benefit Plan for which such a summary plan description is required
by applicable Law and (4) each currently effective trust agreement or other
funding vehicle relating to any SpectraSite Benefit Plan. Neither SpectraSite
nor any SpectraSite Subsidiaries has maintained, contributed to or been
obligated to maintain or contribute to, or has any actual or contingent
liability under, any benefit plan that is subject to Title IV of ERISA or
Section 412 of the Code or is otherwise a plan described in Section 3(40) of
ERISA or a plan described in Section 413 of the Code. Other than severance
benefits provided under a SpectraSite Benefit Plan, no SpectraSite Welfare Plan
provides benefits to, or on behalf of, any former employee after the termination
of employment except (1) where the full cost of such benefit is borne entirely
by the former employee (or his eligible dependents or beneficiaries), (2) where
plan benefits are payable through a trust, the fair market value of the assets
of which equal or exceed the present value of the liabilities of such plan or
(3) where the benefit is required by Section 4980B of the Code.
(c) Except as has not had or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect: (i) each
SpectraSite Benefit Plan in effect on the date hereof has been administered in
all respects in accordance with its terms, and SpectraSite and each of the
SpectraSite Subsidiaries and all SpectraSite Benefit Plans are in compliance
with the applicable provisions of ERISA, the Code and other applicable Laws as
to the SpectraSite Benefit Plans; (ii) all contributions, including participant
contributions, required under each SpectraSite Benefit Plan have been made in
full on a timely and proper basis pursuant to the
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terms of such plans and applicable Law; (iii) with respect to the SpectraSite
Benefit Plans, individually and in the aggregate, no event has occurred, and
there exists no condition or set of circumstances, including claims, audits, and
investigations, in connection with which SpectraSite or any of the SpectraSite
Subsidiaries could reasonably be expected to become subject to liability under
ERISA, the Code or any other applicable Law; (iv) the amounts payable pursuant
to the terms of a SpectraSite Benefit Plan will not be subject to any income tax
deduction limit under Section 162(m) of the Code or any other applicable Law;
(v) each SpectraSite Pension Plan that is intended to comply with the provisions
of Section 401(a) of the Code has been the subject of a determination letter
from the Internal Revenue Service to the effect that such SpectraSite Pension
Plan currently is qualified and exempt from income taxes under Section 401(a) of
the Code and the trust relating to such plan is exempt from income taxes under
Section 501(a) of the Code, and no such determination letter has been revoked
and, to the knowledge of SpectraSite, revocation has not been threatened; (vi)
SpectraSite has made available to ATC a copy of the most recent determination
letter received with respect to each SpectraSite Pension Plan for which such a
letter has been issued, as well as a copy of any pending application for a
determination letter; (vii) there are no understandings, agreements or
undertakings, written or oral, with any person (other than the express terms of
any SpectraSite Benefit Plans) that would (pursuant to any such understandings,
agreements or undertakings) reasonably be expected to result in any liabilities
if any SpectraSite Benefit Plan was amended or terminated on or at any time
after the Effective Time or that would prevent any unilateral action by
SpectraSite (or, after the Effective Time, ATC) to effect such amendment or
termination; (viii) no present or former officers, employees, directors or
independent contractors of SpectraSite or any SpectraSite Subsidiaries will be
entitled to any additional benefits or any acceleration of the time of payment,
funding or vesting of any benefits under any SpectraSite Benefit Plan as a
result of the transactions contemplated by this Agreement; (ix) neither the
execution and delivery of this Agreement, nor the consummation of any
transaction contemplated by this Agreement (alone or in conjunction with a
termination of employment) will (A) trigger any funding (through a grantor trust
or otherwise) of any compensation or benefits or (B) result in any violation or
breach of, or a default (with or without notice or lapse of time or both) under
any SpectraSite Benefit Plan; (x) other than as set forth in any SpectraSite
Benefit Plans or as may be required to avoid any adverse tax consequence under
Section 409A of the Code, since December 31, 2004, there has not been any
adoption or amendment in any material respect by SpectraSite or any SpectraSite
Subsidiaries of any SpectraSite Benefit Plan or any agreement (whether or not
legally binding) to adopt or amend any such plan; and (xi) only officers,
directors and employees of SpectraSite or any SpectraSite Subsidiaries are
eligible for compensation or benefits under the terms of each SpectraSite
Benefit Plan, and each individual who is classified by SpectraSite or any
SpectraSite Subsidiary as an "employee" or as an "independent contractor" is
properly so classified.
Section 3.15. LABOR AND EMPLOYMENT MATTERS.
(a) Since February 10, 2003, neither SpectraSite nor any of the
SpectraSite Subsidiaries has been a party to, or bound by, or conducted
negotiations regarding, any collective bargaining agreement or other contracts,
arrangements, agreements or understandings with a labor union or labor
organization that was certified by the National Labor Relations Board ("NLRB")
or voluntarily recognized or recognized under foreign Law. There is no existing,
pending or, to the knowledge of SpectraSite, threatened (i) labor dispute,
walkout, lockout, strike, slowdown, hand billing, picketing work stoppage
(sympathetic or otherwise), work
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interruption or other "concerted action" (each a "CONCERTED ACTION") involving
the employees of SpectraSite or any of the SpectraSite Subsidiaries, (ii) unfair
labor practice charge or complaint, labor dispute, labor arbitration proceeding
or any other matter before the NLRB or any other comparable state agency against
or involving SpectraSite or any of the SpectraSite Subsidiaries, (iii) election
petition or other activity or proceeding by a labor union or representative
thereof to organize any employees of SpectraSite or any of the SpectraSite
Subsidiaries, (iv) certification or decertification question relating to
collective bargaining units at the premises of SpectraSite or any of the
SpectraSite Subsidiaries, or (v) grievance or arbitration demand against
SpectraSite or any of SpectraSite's Subsidiaries whether or not filed pursuant
to a collective bargaining agreement that, in the case of any of the foregoing,
individually or in the aggregate has or would reasonably be expected to have a
Material Adverse Effect. To the knowledge of SpectraSite, neither the employees
of SpectraSite nor the employees of any of the SpectraSite Subsidiaries have
engaged in a Concerted Action in the past three years that has had or would
reasonably be expected to have a Material Adverse Effect.
(b) To the knowledge of SpectraSite, none of SpectraSite, any of the
SpectraSite Subsidiaries or any of their respective representatives or employees
has committed an unfair labor practice in connection with the operation of the
respective businesses of SpectraSite or any of the SpectraSite Subsidiaries,
which has had or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. Each of SpectraSite and the SpectraSite
Subsidiaries is in compliance with all applicable Laws respecting labor,
employment, fair employment practices, terms and conditions of employment,
workers' compensation, occupational safety, plant closings, mass layoffs, and
wages and hours, except where such failure has not had and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect. There are no material controversies pending or, to the knowledge of
SpectraSite, threatened between SpectraSite, the SpectraSite Subsidiaries and
any of its current or former employees which have resulted in, or would
reasonably be expected to result in, an action, suit, proceeding, claim,
arbitration or investigation before any Governmental Entity which has had, or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
Section 3.16. ENVIRONMENTAL COMPLIANCE AND DISCLOSURE.
(a) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect: (i) each of
SpectraSite and the SpectraSite Subsidiaries possesses, and is in compliance
with, all permits, licenses and governmental authorizations and has filed all
registrations and notices that are required under, all Environmental Laws
applicable to SpectraSite or any SpectraSite Subsidiary, as applicable, (ii)
there are no proceedings pending, or, to SpectraSite's knowledge, threatened to
cancel, modify, or not renew any such permits, licenses or governmental
authorizations, and (iii) SpectraSite and each of the SpectraSite Subsidiaries
is in compliance with all applicable limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in those Environmental Laws.
(b) Neither SpectraSite nor any SpectraSite Subsidiary has received
written notice of actual or threatened or potential liability that would be
material to SpectraSite and the SpectraSite Subsidiaries, taken as a whole,
under the Federal Comprehensive Environmental
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Response, Compensation and Liability Act (42 U.S.C. ss.9601 et seq.) ("CERCLA")
or any similar applicable state or local statute or ordinance from any
governmental agency.
(c) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, to the
knowledge of SpectraSite, no Hazardous Materials have ever been or are being
spilled, released, discharged, disposed, placed or otherwise caused to become
located in any environmental medium, including, without limitation, soil,
sub-surface strata, air, water or ground water, under, at, or upon any plant,
facility, site, area or property currently or previously owned or leased by
SpectraSite or any SpectraSite Subsidiary or on which SpectraSite or any
SpectraSite Subsidiary is conducting or has conducted its business or
operations.
(d) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, neither
SpectraSite nor any SpectraSite Subsidiary has entered into or agreed to, nor
does either contemplate entering into, any consent or Order, and neither
SpectraSite nor any SpectraSite Subsidiary is subject to any consent or Order,
in either case, relating to compliance with, or the investigation, management or
cleanup of Hazardous Materials under, any applicable Environmental Laws.
(e) Neither SpectraSite nor any SpectraSite Subsidiary has been
subject to any administrative or judicial proceeding material to SpectraSite and
the SpectraSite Subsidiaries, taken as a whole, pursuant to, and, to the
knowledge of SpectraSite, has not been alleged in writing by any governmental
agency to be in violation in a manner material to SpectraSite and the
SpectraSite Subsidiaries, taken as a whole, of, applicable Environmental Laws
either now or any time during the past five years.
(f) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, neither
SpectraSite nor any SpectraSite Subsidiary has received notice that it is
subject to any claim, obligation, penalty, fine, liability, loss, damage or
expense of whatever kind or nature, contingent or otherwise, incurred or imposed
or based upon any provision of any applicable Environmental Law and arising out
of any act or omission of SpectraSite or any SpectraSite Subsidiary, its
employees, agents or representatives or, to the knowledge of SpectraSite,
arising out of the ownership, use, control or operation by SpectraSite or any
SpectraSite Subsidiary of any plant, facility, site, area or property (including
any plant, facility, site, area or property currently or previously owned or
leased by SpectraSite or any SpectraSite Subsidiary) or any other area on which
SpectraSite or any SpectraSite Subsidiary is conducting or has conducted its
business or operations at or from which any Hazardous Materials were released
into the environment (the term "release" meaning any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment, and the term "environment" meaning any
surface or ground water, drinking water supply, soil, surface or subsurface
strata or medium, or the ambient air) and there is no reasonable basis for any
such notice and, to the knowledge of SpectraSite, none are threatened or
foreseen.
(g) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, to the
knowledge of SpectraSite, none of the assets owned by SpectraSite or any
SpectraSite Subsidiary or any real property owned or leased
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by SpectraSite or any SpectraSite Subsidiary contain any friable asbestos, PCBs
or underground storage tanks.
(h) As used in this Agreement, the term "ENVIRONMENTAL LAWS" means
any applicable and binding Laws (including statutes, and common law) of the
United States, any State or any political subdivision thereof, or any other
nation or political subdivision thereof, relating to pollution, management of
Hazardous Materials, protection of natural resources, protection of the
environment or protection of human health and safety from Hazardous Materials,
including judgments, awards, decrees, regulations, rules, standards,
requirements, orders and permits issued by any court, administrative agency or
commission or other Governmental Entity under such Laws, and shall include
without limitation CERCLA, the Clean Air Act (42 U.S.C. xx.xx. 7401 et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. xx.xx. 6901 et seq.), the
Clean Water Act (33 U.S.C. xx.xx. 1251 et seq.), the Occupational Safety and
Health Act (29 U.S.C. xx.xx. 651 et seq.) (to the extent it regulates Hazardous
Materials) , the Toxic Substances Control Act (15 U.S.C. xx.xx. 2601 et seq.),
Emergency Planning and Community Right To Know Act (42 U.S.C. 11001 et seq.),
and the Safe Drinking Water Act (42 U.S.C. xx.xx. 300f et seq.), as well as any
and all regulations, rules, standards, requirements, orders and permits issued
thereunder.
(i) As used in this Agreement, the term "HAZARDOUS MATERIAL" means
any waste, pollutant, hazardous substance, toxic, radioactive, ignitable,
reactive or corrosive substance, hazardous waste, special waste, controlled
waste, industrial substance, by-product, process intermediate product or waste,
petroleum or petroleum-derived substance or waste, chemical liquids or solids,
liquid or gaseous products, or any constituent of any such substance, waste or
material which is regulated by Environmental Laws, the presence of which in the
environment is regulated or creates liability, or which may be harmful to human
health or the environment.
Section 3.17. INTELLECTUAL PROPERTY.
(a) Except as, individually or in the aggregate, has not had and
would not reasonably be expected to have a Material Adverse Effect: SpectraSite
does not have knowledge of any valid grounds for any bona fide claims (A) to the
effect that the manufacture, sale, licensing or use of any product as now used,
sold or licensed or proposed for use, sale or license by SpectraSite or any of
the SpectraSite Subsidiaries, infringes on any copyright, patent, trademark,
trade name, service xxxx or trade secret of any third party, (B) against the use
by SpectraSite or any of the SpectraSite Subsidiaries of any copyrights,
patents, trademarks, trade names, service marks, trade secrets, technology,
know-how or computer software programs and applications used in the business of
SpectraSite or any of the SpectraSite Subsidiaries as currently conducted or as
proposed to be conducted, (C) challenging the ownership, validity or
effectiveness of any of the SpectraSite Intellectual Property Rights material to
SpectraSite and the SpectraSite Subsidiaries, taken as a whole, or (D)
challenging the license or legally enforceable right to use of the Third-Party
Intellectual Property Rights by SpectraSite or any of the SpectraSite
Subsidiaries. Except as, individually or in the aggregate, has not had and would
not reasonably be expected to have a Material Adverse Effect, SpectraSite and
each of the SpectraSite Subsidiaries owns, or is licensed to use (in each case
free and clear of any Liens), all Intellectual Property used in or necessary for
the conduct of its business as currently conducted.
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(b) As used in this Agreement, the term (x) "INTELLECTUAL PROPERTY"
means all patents, trademarks, trade names, service marks, copyrights and any
applications therefor, technology, know-how, computer software programs or
applications, and other proprietary information or materials, trademarks, trade
names, service marks and copyrights, (y) "THIRD-PARTY INTELLECTUAL PROPERTY
RIGHTS" means any rights to Intellectual Property owned by any third party, and
(z) "SPECTRASITE INTELLECTUAL PROPERTY RIGHTS" means the Intellectual Property
owned or used by SpectraSite or any of the SpectraSite Subsidiaries.
Section 3.18. STOCKHOLDERS' RIGHTS AGREEMENT. Neither SpectraSite nor
any SpectraSite Subsidiary has adopted, or intends to adopt, a stockholders'
rights agreement or any similar plan or agreement which limits or impairs the
ability to purchase, or become the direct or indirect beneficial owner of,
Shares or any other equity or debt securities of SpectraSite or any of the
SpectraSite Subsidiaries.
Section 3.19. BROKERS. Except pursuant to the SpectraSite Independent
Advisors' engagement letters with SpectraSite, no broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with this Agreement, the Merger or the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
SpectraSite. Section 3.19 of the SpectraSite Disclosure Letter includes a true
and complete copy of all agreements between SpectraSite and the SpectraSite
Independent Advisors pursuant to which such firms would be entitled to any
payment relating to this Agreement, the Merger or the other transactions
contemplated by this Agreement.
Section 3.20. INSURANCE. SpectraSite has delivered to ATC prior to the
date hereof a list that is true and complete in all material respects of all
material insurance policies in force naming SpectraSite, any of the SpectraSite
Subsidiaries or employees thereof as an insured or beneficiary or as a loss
payable payee or for which SpectraSite or any SpectraSite Subsidiary has paid or
is obligated to pay all or part of the premiums. Except as has not had, or would
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, all such insurance policies are in full force and effect, all
premiums due and payable thereon have been paid, and neither SpectraSite nor any
SpectraSite Subsidiary has received, as of the date hereof, written notice of
any pending or threatened cancellation or premium increase (retroactive or
otherwise) with respect thereto. Each of SpectraSite and the SpectraSite
Subsidiaries is in compliance with all conditions contained in such insurance
policies, except where the failure to so comply has not had, or would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 3.21. FOREIGN CORRUPT PRACTICES ACT AND INTERNATIONAL TRADE
SANCTIONS. Neither SpectraSite, nor any SpectraSite Subsidiaries, nor any of
their respective directors, officers, agents, employees or any other persons
acting on their behalf has, in connection with the operation of their respective
businesses, (i) used any corporate or other funds for unlawful contributions,
payments, gifts or entertainment, or made any unlawful expenditures relating to
political activity, to government officials, candidates or members of political
parties or organizations, or established or maintained any unlawful or
unrecorded funds in violation of Section 104 of the Foreign Corrupt Practices
Act of 1977, as amended, or any other similar applicable foreign, Federal or
state Law, (ii) paid, accepted or received or any unlawful contributions,
payments, expenditures or gifts, or (iii) violated or operated in noncompliance
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with any export restrictions, anti-boycott regulations, embargo regulations or
other applicable domestic or foreign Laws, except, in the case of clauses (i),
(ii) and (iii), as has not had, or would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF ATC AND MERGER SUB
Each of ATC and Merger Sub represents and warrants to SpectraSite as
follows (except (i) as set forth in the written disclosure letter (which letter
shall in each case specifically identify by reference to Sections of this
Agreement any exceptions to each of the representations, warranties and
covenants contained in this Agreement; PROVIDED, HOWEVER, that any information
set forth in one section of such disclosure letter shall be deemed to apply to
each other Section or subsection thereof or hereof to which its relevance is
readily apparent on its face) delivered by ATC to SpectraSite in connection with
the execution and delivery of this Agreement (the "ATC DISCLOSURE LETTER") or
(ii) as disclosed in the ATC SEC Reports filed or furnished to the SEC by ATC,
and in either case, publicly available on or after January 1, 2005 and prior to
the date hereof, but excluding any risk factor disclosure contained in any such
ATC SEC Reports under the heading "Factors That May Affect Future Results" or
"Special Note Regarding Forward-Looking Statements"):
Section 4.1. ORGANIZATION AND STANDING.
(a) Each of ATC and Merger Sub is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
formation. ATC has made available to SpectraSite complete and correct copies of
the minutes (or, in the case of minutes that have not yet been finalized, drafts
thereof) of all meetings of the stockholders of ATC, the Board of Directors of
ATC and the committees of Boards of Directors of ATC, in each case held since
January 1, 2003 and prior to the date hereof.
(b) (i) Each ATC Subsidiary is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization and (ii) each of ATC, Merger Sub and each ATC Subsidiary (A) has
full corporate (or similar) power and authority and all necessary government
approvals to own, lease and operate its properties and assets and to conduct its
business as presently conducted, and (B) is duly qualified or licensed to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the properties owned, leased or operated by it or the
nature of its business makes such qualification or licensing necessary, except
in the case of clauses (b)(i) and (b)(ii), where any such failure has not had,
or would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. ATC has furnished or made available to SpectraSite true
and complete copies of the Restated Certificate of Incorporation of ATC (the
"ATC CERTIFICATE OF INCORPORATION") and the Bylaws of ATC (the "ATC BYLAWS").
The ATC Certificate of Incorporation and the ATC Bylaws are in full force and
effect and have not been amended or otherwise modified. ATC is not in material
violation of any provision of the ATC Certificate of Incorporation or the ATC
Bylaws, and no ATC Subsidiary is in material violation of any provision of its
certificate of incorporation, bylaws or equivalent organizational documents.
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(c) Merger Sub was formed solely for the purpose of engaging in the
transactions contemplated by this Agreement. Merger Sub has not engaged in any
business activities, conducted any operations or incurred any liabilities, other
than liabilities and obligations incurred in connection with the transactions
contemplated by this Agreement.
Section 4.2. CAPITALIZATION.
(a) The authorized capital stock of ATC consists of (i) 500,000,000
shares of ATC Class A Common Stock, par value $0.01 per share ("ATC CLASS A
COMMON STOCK"), (ii) 50,000,000 shares of Class B common stock, par value $.01
per share ("ATC CLASS B COMMON STOCK"), (iii) 10,000,000 shares of Class C
common stock, par value $.01 per share ("ATC CLASS C COMMON STOCK" and, together
with the ATC Class A Common Stock and the ATC Class B Common Stock, the "ATC
COMMON STOCK") and (iv) 20,000,000 shares of preferred stock, par value $.01 per
share ("ATC PREFERRED STOCK"). At the close of business on May 2, 2005, (i)
230,672,653 shares of ATC Class A Common Stock were issued and outstanding, all
of which were validly issued, fully paid and nonassessable and free of
preemptive rights, (ii) 145,221 shares of ATC Class A Common Stock were held by
ATC in its treasury, (iii) an aggregate of 29,063,304 shares of ATC Class A
Common Stock were reserved for issuance pursuant to ATC's Amended and Restated
1997 Stock Option Plan and ATC's 2000 Employee Stock Purchase Plan
(collectively, the "ATC STOCK PLANS"), of which 18,364,740 shares of ATC Class A
Common Stock were subject to outstanding and unexercised ATC Stock Options (as
defined below), (iv) none of the issued and outstanding shares of ATC Class A
Common Stock were subject to vesting, restrictions on transfer or repurchase
rights (shares so subject, "ATC RESTRICTED Stock"), (v) no shares of ATC Class B
Common Stock were issued and outstanding and no shares of ATC Class B Common
Stock were held by ATC in its treasury, (vi) no shares of ATC Class C Common
Stock were issued and outstanding and no shares of ATC Class C Common Stock were
held by ATC in its treasury and (vii) no shares of ATC Class B Common Stock or
ATC Class C Common Stock were reserved for issuance, pursuant to the ATC Stock
Plans or otherwise. At the close of business on May 2, 2005, (i) no shares of
ATC Preferred Stock were issued and outstanding or were held by ATC in its
treasury, (ii) warrants to acquire 11,389,012 shares of ATC Class A Common Stock
from ATC pursuant to the warrant agreements listed on Section 4.2(a) of the ATC
Disclosure Letter and previously made available in complete and correct form to
SpectraSite (the "ATC WARRANTS") were issued and outstanding, (iii) 17,179,680
shares of ATC Class A Common Stock were reserved for issuance and issuable upon
conversion of the 3.25% Convertible Notes due August 1, 2010 of ATC (the "3.25%
ATC NOTES"), (iv) 16,829,273 shares of ATC Class A Common Stock were reserved
for issuance and issuable upon conversion of the 3.0% Convertible Notes due
August 15, 2012 of ATC (the "3.0% ATC NOTES"), (v) 1,616 shares of ATC Class A
Common Stock were reserved for issuance and issuable upon conversion of the
2.25% Convertible Notes due 2009 of ATC (the "2.25% ATC NOTES"), and (vi)
5,353,172 shares of ATC Class A Common Stock were reserved for issuance and
issuable upon conversion of the 5.0% Convertible Notes due 2010 of ATC (the
"5.0% ATC NOTES", and together with the 3.25% ATC Notes, the 3.0% ATC Notes, and
the 2.25% ATC Notes, the "ATC CONVERTIBLE NOTES").
(b) Except as set forth above, as of the date hereof there are no
Stock Rights in ATC or any ATC Subsidiary. All shares of ATC Common Stock
subject to issuance as aforesaid, upon issuance on the terms and conditions
specified in the instruments pursuant to which they
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are issuable, will be duly authorized, validly issued, fully paid and
nonassessable. There are no outstanding contractual obligations of ATC or any
ATC Subsidiary to repurchase, redeem or otherwise acquire any capital stock or
equity interest of ATC (including any shares of ATC Common Stock) or any ATC
Subsidiary or any Stock Rights or to pay any dividend or make any other
distribution in respect thereof or to provide funds to, or make any investment
(in the form of a loan, capital contribution or otherwise) in, any person.
(c) The authorized equity interests of Merger Sub consist of 1,000
Merger Sub Units. As of the close of business on May 3, 2005, 1,000 Merger Sub
Units were issued and outstanding, all of which are owned directly by ATC free
and clear of all Liens and are duly authorized, validly issued, fully paid and
nonassessable and free of preemptive rights. There are no options, warrants,
convertible securities, subscriptions, stock appreciation rights, phantom stock
plans or stock equivalents or other rights, agreements, arrangements or
commitments (contingent or otherwise) of any character issued or authorized by
Merger Sub relating to the issued or unissued equity interests of Merger Sub or
obligating Merger Sub to issue or sell any equity interests of, or options,
warrants, convertible securities, subscriptions or other equity interests in,
Merger Sub.
(d) Exhibit 21.1 to ATC's Annual Report on Form 10-K for the fiscal
year ended December 31, 2004 includes all the Subsidiaries of ATC (the "ATC
SUBSIDIARIES") in existence as of the date hereof. All the outstanding shares of
capital stock of, or other equity interests in, each such ATC Subsidiary have
been duly authorized and validly issued and are fully paid and nonassessable and
are, except as set forth in such Exhibit 21.1, owned directly or indirectly by
ATC, free and clear of all Liens and free of any other restriction (including
any restriction on the right to vote, sell or otherwise dispose of such capital
stock or other ownership interests), except for restrictions imposed by
applicable securities laws. As of the date of this Agreement, neither ATC nor
any of the ATC Subsidiaries directly or indirectly owns or has any right or
obligation to subscribe for or otherwise acquire any equity or similar interest
in, or any interest convertible into or exchangeable or exercisable for, any
corporation, partnership, joint venture or other business association or entity
(other than the ATC Subsidiaries).
Section 4.3. AUTHORITY FOR AGREEMENT.
(a) Each of ATC and Merger Sub has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and, subject to obtaining the ATC Stockholder Approval (as defined
below) in connection with the Merger, to consummate the Merger and the other
transactions contemplated by this Agreement. The execution, delivery and
performance by each of ATC and Merger Sub of this Agreement, and the
consummation by each of ATC and Merger Sub of the Merger and the other
transactions contemplated by this Agreement, have been duly authorized by all
necessary corporate action on the part of each of ATC and Merger Sub and no
other corporate proceedings on the part of each of ATC and Merger Sub are
necessary to authorize this Agreement or to consummate the Merger or the other
transactions contemplated by this Agreement (other than obtaining the ATC
Stockholder Approval and the filing and recordation of appropriate merger
documents as required by the DGCL and the DLLC Act). This Agreement has been
duly executed and delivered by each of ATC and Merger Sub and, assuming the due
authorization, execution and delivery by SpectraSite, constitutes a legal, valid
and binding obligation of each of ATC and
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Merger Sub enforceable against each of ATC and Merger Sub in accordance with its
terms subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally and to the effect of general principles of equity. The
affirmative vote of a majority of the total votes cast by the holders of ATC
Common Stock at the ATC Stockholders Meeting, provided that the total votes cast
represents over 50% in interest of all securities entitled to vote, as required
by the Listed Company Manual of the NYSE, is the only vote of the holders of any
capital stock of ATC necessary to approve the issuance of ATC Common Stock in
connection with the Merger (the "ATC STOCKHOLDER APPROVAL"). The affirmative
vote of the holders of the outstanding units of interest in Merger Sub entitled
to vote at a duly called and held meeting of unitholders is the only vote of the
holders of membership units of Merger Sub necessary to approve this Agreement,
the Merger and the other transactions contemplated by this Agreement.
(b) The Board of Directors of ATC has unanimously (i) determined
that this Agreement and the other transactions contemplated hereby, including
the Merger, are advisable and in the best interests of ATC and ATC's
stockholders, (ii) approved and adopted this Agreement and the transactions
contemplated hereby, including the Merger and (iii) resolved to recommend
approval of the issuance of ATC Common Stock in connection with the Merger by
ATC's stockholders which, in each case, has not been subsequently rescinded,
modified or withdrawn prior to the execution and delivery of this Agreement by
ATC. The actions taken by the Board of Directors of ATC constitute approval of
the Merger, this Agreement and the other transactions contemplated hereby by the
Board of Directors of ATC under the provisions of Section 203 of the DGCL such
that Section 203 of the DGCL does not apply to this Agreement, or the
transactions contemplated hereby. Other than Section 203 of the DGCL, no state
anti-takeover or similar statute is applicable to the Merger, this Agreement or
any of the transactions contemplated by this Agreement.
(c) The Board of Managers of Merger Sub has unanimously (i)
determined that this Agreement and the other transactions contemplated hereby,
including the Merger, are advisable and in the best interests of Merger Sub and
Merger Sub's stockholder, (ii) approved and adopted this Agreement and the
transactions contemplated hereby, including the Merger and (iii) resolved to
recommend approval and adoption of this Agreement and the Merger by the sole
member of Merger Sub.
(d) ATC, in its capacity as sole member of Merger Sub, has
unanimously approved and adopted this Agreement and the Merger.
(e) Citigroup Global Markets Inc. (the "ATC INDEPENDENT ADVISOR")
has delivered to the Board of Directors of ATC its opinion to the effect that,
as of the date of such opinion and based on the assumptions, qualifications and
limitations contained therein, the Merger Consideration is fair, from a
financial point of view, to ATC. ATC has made available to SpectraSite a correct
and complete copy of the form of such opinion prior to the execution of this
Agreement.
Section 4.4. NO CONFLICT. The execution and delivery of this Agreement
by each of ATC and Merger Sub do not, and the performance of this Agreement by
each of ATC and Merger Sub and the consummation of the Merger and the other
transactions contemplated by this Agreement
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will not, (a) assuming the ATC Stockholder Approval is obtained, conflict with
or violate (i) the ATC Certificate of Incorporation or the ATC Bylaws, (ii) the
Certificate of Formation of Merger Sub or the Operating Agreement of Merger Sub
or (iii) the equivalent organizational documents of any of the ATC Subsidiaries,
(b) subject to Section 4.5 and assuming the ATC Stockholder Approval is
obtained, conflict with or violate any Law or any Order, in each case applicable
to ATC or any of the ATC Subsidiaries or by which any property or asset of ATC
or any of the ATC Subsidiaries is bound or affected, or (c) result in a breach
of or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, give to others any right of termination,
amendment, acceleration or cancellation of, result in the triggering of any
payment or other obligation or any right of consent, or result in the creation
of a Lien on any property or asset of ATC or any of the ATC Subsidiaries
pursuant to any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which ATC or any
of the ATC Subsidiaries is a party or by which ATC or any of the ATC
Subsidiaries or any property or asset of any of them is bound or affected
(including any ATC Material Contract), except, in the case of clauses (a)(iii),
(b) and (c) above, for any such conflicts, violations, breaches, defaults or
other occurrences which have not had and would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
Section 4.5. REQUIRED FILINGS AND CONSENTS. The execution and delivery
of this Agreement by ATC and Merger Sub do not, and the performance of this
Agreement by ATC and Merger Sub will not, require any consent, approval, order,
authorization or permit of, or declaration, registration, filing with, or
notification to, any Governmental Entity, except for (i) applicable
requirements, if any, of (A) the Securities Act and the Exchange Act, including,
without limitation, the filing with the SEC of the Joint Proxy Statement and of
the Registration Statement in which the Joint Proxy Statement will be included
as a prospectus, and declaration of effectiveness of the Registration Statement,
(B) state securities or "blue sky" laws, (C) the DGCL and the DLLC Act to file
the Certificate of Merger or other appropriate documentation, (D) the New York
Stock Exchange, (ii) those required by the HSR Act, (iii) such filings and
approvals as are required to be made or obtained under any foreign antitrust,
competition or similar Laws in connection with the consummation of the Merger
and the other transactions contemplated by this Agreement, (iv) the filing of
customary applications and notices, as applicable, (A) with the FAA, and any
approvals of such applications and notices, or (B) with the FCC under the
Communications Act, and any approvals of such applications and notices, which,
in the case of this clause (iv), are required or appropriate with respect to the
transactions contemplated by this Agreement and related to ATC's ownership or
operation of communications or broadcast towers and the assets and properties
relating thereto, (v) receipt of the ATC Stockholder Approval and the
SpectraSite Stockholder Approval, and (vi) customary filings, notices and
approvals with any state public service, public utility commissions, state
environmental agencies or similar state regulatory bodies with respect to the
transactions contemplated by this Agreement and related to the consummation of
the Merger and the other transactions contemplated by this Agreement as a result
of ATC's ownership or operation of communications or broadcast towers and the
assets and properties relating thereto.
Section 4.6. COMPLIANCE; REGULATORY COMPLIANCE.
(a) Each of ATC and the ATC Subsidiaries (i) has been operated at
all times in compliance with all Laws applicable to ATC or any of the ATC
Subsidiaries or by which any
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property, business or asset of ATC or any of the ATC Subsidiaries is bound or
affected and (ii) is not in default or violation of any governmental licenses,
permits or franchises to which ATC or any of the ATC Subsidiaries is a party or
by which ATC or any of the ATC Subsidiaries or any property or asset of ATC or
any of the ATC Subsidiaries is bound or affected other than, in the case of
clauses (i) and (ii) above, failures to comply, defaults or violations which do
not have and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(b) Each of ATC and the ATC Subsidiaries has in effect all required
governmental licenses, permits, certificates, approvals and authorizations
necessary for the conduct of their business and the use of their properties and
assets, as presently conducted and used, except where such failure has not had,
or would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and neither ATC nor any ATC Subsidiary has received
notice from any Governmental Entity that any such license, permit, certificate,
approval or authorization is subject to any adverse action which has had, or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(c) This Section 4.6 does not relate to tax matters, employee
benefits matters, labor relations matters, or environmental matters which are
the subjects of Sections 4.9, 4.14, 4.15 and 4.16, respectively.
Section 4.7. SEC FILINGS; FINANCIAL STATEMENTS.
(a) Each of ATC and the ATC Subsidiaries has filed all forms,
reports, statements and documents required to be filed with the SEC since
February 10, 2003 (the "ATC SEC REPORTS"), each of which has complied in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations promulgated thereunder, the Exchange Act, and the rules
and regulations promulgated thereunder, each as in effect on the date so filed,
except to the extent updated, amended, restated or corrected by a subsequent ATC
SEC Report filed or furnished to the SEC by ATC, and in either case, publicly
available prior to the date hereof (each, a "ATC FILED SEC REPORT"). None of the
ATC SEC Reports (including, any financial statements or schedules included or
incorporated by reference therein) contained when filed, and any ATC SEC Reports
filed with the SEC subsequent to the date hereof will not contain, any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except to the extent
updated, amended, restated or corrected by a subsequent ATC Filed SEC Report.
The principal executive officer of ATC and the principal financial officer of
ATC (and each former principal executive officer of ATC and each former
principal financial officer of ATC, as applicable) have made the certifications
required by Sections 302 and 906 of, and ATC has complied in all material
respects with, the Xxxxxxxx-Xxxxx Act, and the rules and regulations of the SEC
promulgated thereunder with respect to ATC's filings pursuant to the Exchange
Act. For purposes of the preceding sentence, "principal executive officer" and
"principal financial officer" shall have the meanings given to such terms in the
Xxxxxxxx-Xxxxx Act.
(b) Except to the extent updated, amended, restated or corrected by
a subsequent ATC Filed SEC Report, all of the financial statements included in
the ATC SEC Reports, in each
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case, including any related notes thereto, as filed with the SEC (those filed
with the SEC are collectively referred to as the "ATC FINANCIAL STATEMENTS"),
have been prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes thereto
or, in the case of the unaudited statements, as may be permitted by Form 10-Q of
the SEC and subject, in the case of the unaudited statements, to normal,
year-end audit adjustments which would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect). The consolidated
balance sheets (including the related notes) included in such ATC Financial
Statements (if applicable, as updated, amended, restated or corrected in a
subsequent ATC Filed SEC Report) fairly present, in all material respects, the
consolidated financial position of ATC and the ATC Subsidiaries at the
respective dates thereof, and the consolidated statements of operations,
stockholders' equity and cash flows (in each case, including the related notes)
included in such ATC Financial Statements (if applicable, as updated, amended,
restated or corrected in a subsequent ATC Filed SEC Report) fairly present, in
all material respects, the consolidated statements of operations, stockholders'
equity and cash flows of ATC and the ATC Subsidiaries for the periods indicated,
subject, in the case of the unaudited statements, to normal, year-end audit
adjustments which would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
(c) ATC has designed and maintains a system of "internal control
over financial reporting" (as defined in Rules 13a-15(f) and 15d-15(f) of the
Exchange Act) sufficient to provide reasonable assurances regarding the
reliability of financial reporting.
(d) ATC's "disclosure controls and procedures" (as defined in Rules
13a-15(e) and 15d-15(e) of the Exchange Act) are reasonably designed to ensure
that all material information (both financial and non-financial) required to be
disclosed by ATC in the reports that it files or submits under the Exchange Act
is recorded, processed, summarized and reported within the time periods
specified in the rules and forms of the SEC, and that all such information is
accumulated and communicated to ATC's management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications of the
chief executive officer and chief financial officer of ATC required under the
Exchange Act with respect to such reports.
(e) Neither ATC nor any of the ATC Subsidiaries has any liabilities
or obligations of any kind whatsoever, whether or not accrued and whether or not
contingent or absolute, that are material to ATC and the ATC Subsidiaries, taken
as a whole, other than (i) liabilities or obligations disclosed or provided for
in the consolidated balance sheet of ATC and the ATC Subsidiaries as of December
31, 2004, including the notes thereto, contained in the ATC Filed SEC Reports,
(ii) liabilities or obligations incurred on behalf of ATC in connection with
this Agreement and the contemplated Merger, (iii) liabilities or obligations
incurred in the ordinary course of business consistent with past practice since
January 1, 2005, and (iv) other liabilities or obligations that are not
otherwise covered by insurance that were not, or would not reasonably be
expected to be, material and adverse to the businesses of ATC and the ATC
Subsidiaries, taken as a whole.
Section 4.8. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
contemplated by this Agreement, since January 1, 2005, each of ATC and the ATC
Subsidiaries has conducted its respective businesses only in the ordinary course
in all material respects and in a manner consistent with prior practice in all
material respects and there has not been any event or
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occurrence of any condition that has had or would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Except as
contemplated by this Agreement, since January 1, 2005 and through the date
hereof, there has not been (i) any material change in accounting methods,
principles or practices employed by ATC or (ii) any action of the types
described in Sections 5.2(b) or 5.2(c) which, had such action been taken after
the date of this Agreement, would be in violation of any such Section.
Section 4.9. TAXES.
(a) Each of ATC and the ATC Subsidiaries has duly filed all tax
returns and reports required to be filed by it or has been granted extensions to
file such returns or reports, which extensions have not expired, except to the
extent that all such failures to file, taken together, have not had and would
not reasonably be expected to have a Material Adverse Effect. ATC and each of
the ATC Subsidiaries have paid (or ATC has paid on its behalf) all taxes (i)
shown as due on such returns or (ii) otherwise due and payable, except for those
taxes (x) being contested in good faith by appropriate proceedings and for which
adequate reserves have been established in the financial statements included in
the ATC Filed SEC Reports in accordance with GAAP or (y) that have not had and
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. There are no Liens for any taxes upon the assets of ATC
or the ATC Subsidiaries, other than (i) statutory Liens for taxes not yet due
and payable, (ii) Liens for taxes contested in good faith by appropriate
proceedings and (iii) Liens that are not, and would not reasonably be expected
to be, material to the businesses of ATC and the ATC Subsidiaries, taken as a
whole.
(b) No deficiencies for any taxes have been proposed, asserted or
assessed in writing against ATC or any of the ATC Subsidiaries that are not
adequately reserved for, except for deficiencies that, individually or in the
aggregate, have not had and would not reasonably be expected to have a Material
Adverse Effect, and no requests for waivers of the time to assess any such taxes
have been granted or are pending (other than with respect to years that are
currently under examination by the Internal Revenue Service or other applicable
taxing authorities).
(c) Neither ATC nor any of the ATC Subsidiaries has taken any action
or has any knowledge of any fact or circumstance that is reasonably likely to
prevent the transactions contemplated hereby, including the Merger, from
qualifying as a reorganization within the meaning of Section 368 of the Code.
(d) Neither ATC nor any of the ATC Subsidiaries has constituted
either a "distributing corporation" or a "controlled corporation" (within the
meaning of Section 355(a)(1)(A)) in a distribution of stock qualifying for
tax-free treatment under Section 355 of the Code (i) in the two years prior to
the date of this Agreement or (ii) in a distribution which could otherwise
constitute part of a "plan" or "series of related transactions" (within the
meaning of Section 355(e) of the Code) in conjunction with the Merger.
(e) Neither ATC nor any of the ATC Subsidiaries has entered into a
"listed transaction" within the meaning of Treasury Regulation
ss.1.6011-4(b)(2).
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(f) ATC and the ATC Subsidiaries have complied with all applicable
Laws relating to the payment and withholding of taxes, except where a failure to
comply, individually or in the aggregate, has not had and would not reasonably
be expected to have a Material Adverse Effect.
(g) Neither ATC nor any of the ATC Subsidiaries has any liability
for the taxes of any person (other than ATC and the ATC Subsidiaries) under
Treasury Regulation ss. 1.1502-6 (or any similar provision of any state, local
or foreign law) as a transferee or successor, by contract or otherwise that,
individually or in the aggregate, has had or would reasonably be expected to
have a Material Adverse Effect.
Section 4.10. CHANGE OF CONTROL AGREEMENT; NO EXCESS PARACHUTE PAYMENT.
Neither the execution and delivery of this Agreement nor the consummation of the
Merger or the other transactions contemplated by this Agreement will (either
alone or in conjunction with any other event) result in, cause the accelerated
vesting or delivery of, or increase the amount or value of, any payment or
benefit to any director, officer or employee of ATC or any ATC Subsidiary. No
amount paid or payable by ATC or any ATC Subsidiary in connection with the
Merger or the other transactions contemplated by this Agreement, including
accelerated vesting of options (either solely as a result thereof or as a result
of such transactions in conjunction with any other event), will be an "excess
parachute payment" within the meaning of Section 280G of the Code. Neither ATC
nor any ATC Subsidiary has any obligation to pay or otherwise reimburse any
person for paying any tax imposed under Section 4999 of the Code.
Section 4.11. LITIGATION.
(a) There is no Litigation that which, if adversely determined,
individually or in the aggregate would reasonably be expected to have a Material
Adverse Effect. There is no suit, action or proceeding (including in connection
with the consummation of the Merger) pending or, to the knowledge of ATC,
threatened, against or affecting ATC or any of the ATC Subsidiaries or any of
their respective assets that, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect.
(b) There is not any Order of any Governmental Entity or arbitrator
outstanding against, or, to the knowledge of ATC, investigation by, any
Governmental Entity involving ATC or any of the ATC Subsidiaries or any of their
respective assets that, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect.
(c) This Section 4.11 does not relate to tax matters, employee
benefits matters, labor relations matters, or environmental matters which are
the subjects of Sections 4.9, 4.14, 4.15 and 4.16, respectively.
Section 4.12. CONTRACTS AND COMMITMENTS.
(a) Section 4.12(a) of the ATC Disclosure Letter sets forth a true
and complete list as of the date hereof of each ATC Material Contract. "ATC
MATERIAL CONTRACT" means (i) a "material contract", as such term is defined in
Section 601(b)(10) of Regulation S-K of the SEC, (ii) a contract, agreement or
arrangement which contains any non-compete or exclusivity provisions with
respect to the business of or geographic area with respect to ATC or any ATC
Subsidiary, or restricts the conduct of the business of ATC or any ATC
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Subsidiary, or the geographic area or manner in which ATC or any ATC Subsidiary
may conduct business, in each case in any material respect, (iii) a contract,
agreement or arrangement between ATC or any ATC Subsidiary on the one hand, and
any officer, director or person directly or indirectly owning, controlling or
holding power to vote 5% or more of ATC's outstanding voting securities (other
than compensation arrangements involving a director or officer of ATC listed or
described in Section 4.14 of the ATC Disclosure Letter), on the other hand, or
(iv) a contract, agreement or arrangement to which ATC or any ATC Subsidiary or
any of their respective properties is subject that (A) involves annual revenue
to ATC or the ATC Subsidiaries in excess of $9,300,000 in the calendar year
ending December 31, 2005, (B) obligates ATC or any ATC Subsidiary to expend an
amount in excess of $9,300,000 in the calendar year ending December 31, 2005,
(C) obligates ATC or any ATC Subsidiary to make capital expenditures or acquire
assets (including by way of construction, including in a "build to suit" or
similar agreement, or acquisition of communications towers) in an amount
estimated by SpectraSite as of the date hereof to be in excess of $9,300,000
over the remaining life of such contract or (D) is a material arrangement
governing the legal relationship between ATC or any ATC Subsidiary and one of
the ten largest customers of ATC and any ATC Subsidiaries, taken as a whole, for
the calendar year ended December 31, 2004. ATC has delivered or made available
true and complete copies of all such agreements, arrangements and commitments to
SpectraSite.
(b) Except as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, the ATC Material Contracts are
legal, valid, binding and enforceable in accordance with their respective terms
with respect to ATC and, to the knowledge of ATC, with respect to each other
party to any of such ATC Material Contracts, except, in each case, to the extent
that enforcement of rights and remedies created by any ATC Material Contracts
are subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar Laws of general application related to or affecting
creditors' rights and to general equity principles. There are no existing
defaults, violations or breaches by ATC or any ATC Subsidiary of any notes,
bonds, mortgages, indentures, contracts, agreements or leases to which ATC or
any of the ATC Subsidiaries is a party or by which ATC or any of the ATC
Subsidiaries or any property or asset of ATC or any of the ATC Subsidiaries is
bound or affected, including any ATC Material Contract (or events or conditions
which, with notice or lapse of time or both would constitute such a default,
violation or breach) and, to the knowledge of ATC, there are no such defaults,
violations or breaches (or events or conditions which, with notice or lapse of
time or both, would constitute such a default, violation or breach) with respect
to any third party to any such notes, bonds, mortgages, indentures, contracts,
agreements or leases that, in any such case, has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
ATC has no knowledge of any pending or threatened bankruptcy, insolvency or
similar proceeding with respect to any party to any ATC Material Contract which
has had or would reasonably be expected to have a Material Adverse Effect.
Section 4.12(b) of the ATC Disclosure Letter identifies each ATC Material
Contract set forth therein that requires the consent of or notice to the other
party thereto to avoid any material breach, default or violation of such
contract, agreement or other instrument in connection with the transactions
contemplated hereby. Neither ATC nor any ATC Subsidiary is a party to any voting
agreement with respect to the voting of any securities of ATC. Neither ATC nor
any ATC Subsidiary has any contractual obligation to file a registration
statement under the Securities Act, in respect of any securities of ATC or any
ATC Subsidiary.
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Section 4.13. INFORMATION SUPPLIED. The information supplied or to be
supplied by ATC or Merger Sub for inclusion or incorporation by reference in the
Registration Statement and the Joint Proxy Statement shall not, at (i) the time
the Registration Statement is declared effective, (ii) the time the Joint Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed to
the stockholders of SpectraSite and ATC, (iii) the time of the ATC Stockholders'
Meeting and (iv) the Effective Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. If, at anytime prior
to the Effective Time, any event or circumstance relating to ATC or Merger Sub
or any ATC Subsidiary, or their respective officers or directors, should be
discovered by ATC which should be set forth in an amendment or supplement to the
Registration Statement or Joint Proxy Statement, ATC shall promptly inform
SpectraSite. All documents that ATC is responsible for filing with the SEC in
connection with the Merger or the other transactions contemplated by this
Agreement will comply as to form and substance in all material respects with the
applicable requirements of the Securities Act and the rules and regulations
thereunder and the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, no representation or warranty is made by ATC or
Merger Sub with respect to statements made or incorporated by reference therein
based on information supplied by SpectraSite for inclusion or incorporation by
reference in the Registration Statement or Joint Proxy Statement.
Section 4.14. EMPLOYEE BENEFIT PLANS.
(a) Section 4.14 of the ATC Disclosure Letter sets forth a list as
of the date hereof of all "employee pension benefit plans" (as defined in
Section 3(2) of ERISA) under which ATC or any ATC Subsidiaries has any liability
(sometimes referred to individually as an "ATC PENSION PLAN" and collectively as
the "ATC PENSION Plans"), all "employee welfare benefit plans" (as defined in
Section 3(1) of ERISA) under which ATC or any ATC Subsidiaries has any liability
(sometimes referred to individually as an "ATC WELFARE PLAN" and collectively as
the "ATC WELFARE PLANS"), and each vacation or paid time off, severance,
termination, change in control, employment, incentive compensation, profit
sharing, stock option, fringe benefit, stock purchase, stock ownership, phantom
stock, deferred compensation plans, arrangements or agreements and other
employee fringe benefit plans or arrangements maintained, contributed to or
required to be maintained or contributed to by ATC or any ATC Subsidiaries for
the benefit of any present or former officers, employees, directors or
independent contractors of ATC or any ATC Subsidiaries and under which ATC or
any of the ATC Subsidiaries has any actual or contingent material liabilities
(each of the foregoing being referred to individually as an "ATC BENEFIT PLAN"
and each of the foregoing together with the ATC Pension Plans and ATC Welfare
Plans being referred to collectively as the "ATC BENEFIT PLANS").
(b) ATC has made available to SpectraSite true and complete copies
of (1) each ATC Benefit Plan (or, in the case of any unwritten ATC Benefit Plan,
a summary of the material provisions of such plan) in effect on the date hereof,
(2) the most recent report on Form 5500 filed with the Internal Revenue Service
with respect to each ATC Benefit Plan in effect on the date hereof to the extent
any such report was required by applicable Law, (3) the most recent summary plan
description for each ATC Benefit Plan for which such a summary plan description
is required by applicable Law and (4) each currently effective trust agreement
or other funding vehicle relating to any ATC Benefit Plan. Neither ATC nor any
ATC Subsidiaries has
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maintained, contributed to or been obligated to maintain or contribute to, or
has any actual or contingent liability under, any benefit plan that is subject
to Title IV of ERISA or Section 412 of the Code or is otherwise a plan described
in Section 3(40) of ERISA or a plan described in Section 413 of the Code. Other
than severance benefits provided under a ATC Benefit Plan, no ATC Welfare Plan
provides benefits to, or on behalf of, any former employee after the termination
of employment except (1) where the full cost of such benefit is borne entirely
by the former employee (or his eligible dependents or beneficiaries), (2) where
plan benefits are payable through a trust, the fair market value of the assets
of which equal or exceed the present value of the liabilities of such plan or
(3) where the benefit is required by Section 4980B of the Code.
(c) Except as has not had or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect: (i) each ATC
Benefit Plan in effect on the date hereof has been administered in all respects
in accordance with its terms, and ATC and each of the ATC Subsidiaries and all
ATC Benefit Plans are in compliance with the applicable provisions of ERISA, the
Code and other applicable Laws as to the ATC Benefit Plans; (ii) all
contributions, including participant contributions, required under each ATC
Benefit Plan have been made in full on a timely and proper basis pursuant to the
terms of such plans and applicable Law; (iii) with respect to the ATC Benefit
Plans, individually and in the aggregate, no event has occurred, and there
exists no condition or set of circumstances, including claims, audits, and
investigations, in connection with which ATC or any of the ATC Subsidiaries
could reasonably be expected to become subject to liability under ERISA, the
Code or any other applicable Law; (iv) the amounts payable pursuant to the terms
of a ATC Benefit Plan will not be subject to any income tax deduction limit
under Section 162(m) of the Code or any other applicable Law; (v) each ATC
Pension Plan that is intended to comply with the provisions of Section 401(a) of
the Code has been the subject of a determination letter from the Internal
Revenue Service to the effect that such ATC Pension Plan currently is qualified
and exempt from income taxes under Section 401(a) of the Code and the trust
relating to such plan is exempt from income taxes under Section 501(a) of the
Code, and no such determination letter has been revoked and, to the knowledge of
ATC, revocation has not been threatened; (vi) ATC has made available to
SpectraSite a copy of the most recent determination letter received with respect
to each ATC Pension Plan for which such a letter has been issued, as well as a
copy of any pending application for a determination letter; (vii) there are no
understandings, agreements or undertakings, written or oral, with any person
(other than the express terms of any ATC Benefit Plans) that would (pursuant to
any such understandings, agreements or undertakings) reasonably be expected to
result in any liabilities if any ATC Benefit Plan was amended or terminated on
or at any time after the Effective Time or that would prevent any unilateral
action by ATC (or, after the Effective Time, SpectraSite) to effect such
amendment or termination; (viii) no present or former officers, employees,
directors or independent contractors of ATC or any ATC Subsidiaries will be
entitled to any additional benefits or any acceleration of the time of payment,
funding or vesting of any benefits under any ATC Benefit Plan as a result of the
transactions contemplated by this Agreement; (ix) neither the execution and
delivery of this Agreement, nor the consummation of any transaction contemplated
by this Agreement (alone or in conjunction with a termination of employment)
will (A) trigger any funding (through a grantor trust or otherwise) of any
compensation or benefits or (B) result in any violation or breach of, or a
default (with or without notice or lapse of time or both) under any ATC Benefit
Plan; (x) other than as set forth in any ATC Benefit Plans or as may be required
to avoid any adverse tax
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consequence under Section 409A of the Code, since December 31, 2004, there has
not been any adoption or amendment in any material respect by ATC or any ATC
Subsidiaries of any ATC Benefit Plan or any agreement (whether or not legally
binding) to adopt or amend any such plan; and (xi) only officers, directors and
employees of ATC or any ATC Subsidiaries are eligible for compensation or
benefits under the terms of each ATC Benefit Plan, and each individual who is
classified by ATC or any ATC Subsidiary as an "employee" or as an "independent
contractor" is properly so classified.
Section 4.15. LABOR AND EMPLOYMENT MATTERS.
(a) Since February 10, 2003, neither ATC nor any of the ATC
Subsidiaries has been a party to, or bound by, or conducted negotiations
regarding, any collective bargaining agreement or other contracts, arrangements,
agreements or understandings with a labor union or labor organization that was
certified by the NLRB or voluntarily recognized or recognized under foreign Law.
There is no existing, pending or, to the knowledge of ATC, threatened (i)
Concerted Action involving the employees of ATC or any of the ATC Subsidiaries,
(ii) unfair labor practice charge or complaint, labor dispute, labor arbitration
proceeding or any other matter before the NLRB or any other comparable state
agency against or involving ATC or any of the ATC Subsidiaries, (iii) election
petition or other activity or proceeding by a labor union or representative
thereof to organize any employees of ATC or any of the ATC Subsidiaries, (iv)
certification or decertification question relating to collective bargaining
units at the premises of ATC or any of the ATC Subsidiaries, or (v) grievance or
arbitration demand against ATC or any of the ATC Subsidiaries whether or not
filed pursuant to a collective bargaining agreement that, in the case of any of
the foregoing, individually or in the aggregate has had or would reasonably be
expected to have a Material Adverse Effect. To the knowledge of ATC, neither the
employees of ATC nor the employees of any of the ATC Subsidiaries have engaged
in a Concerted Action in the past three years that has had or would reasonably
be expected to have a Material Adverse Effect.
(b) To the knowledge of ATC, none of ATC, any of the ATC
Subsidiaries or any of their respective representatives or employees has
committed an unfair labor practice in connection with the operation of the
respective businesses of ATC or any of the ATC Subsidiaries, which has had or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Each of ATC and the ATC Subsidiaries is in compliance
with all applicable Laws respecting labor, employment, fair employment
practices, terms and conditions of employment, workers' compensation,
occupational safety, plant closings, mass layoffs, and wages and hours, except
where such failure has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. There are no
material controversies pending or, to the knowledge of ATC, threatened between
ATC, the ATC Subsidiaries and any of its current or former employees which have
resulted in, or would reasonably be expected to result in, an action, suit,
proceeding, claim, arbitration or investigation before any Governmental Entity
which has had, or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
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Section 4.16. ENVIRONMENTAL COMPLIANCE AND DISCLOSURE.
(a) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect: (i) each of
ATC and the ATC Subsidiaries possesses, and is in compliance with, all permits,
licenses and governmental authorizations and has filed all registrations and
notices that are required under, all Environmental Laws applicable to ATC or any
ATC Subsidiary, as applicable, (ii) there are no proceedings pending, or, to
ATC's knowledge, threatened to cancel, modify or not renew any such permits,
licenses or governmental authorizations, and (iii) ATC and each of the ATC
Subsidiaries is in compliance with all applicable limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in those Environmental Laws.
(b) Neither ATC nor any ATC Subsidiary has received written notice
of actual or threatened or potential liability that would be material to ATC and
the ATC Subsidiaries, taken as a whole, under CERCLA or any similar applicable
state or local statute or ordinance from any governmental agency.
(c) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, to the
knowledge of ATC, no Hazardous Materials have ever been or are being spilled,
released, discharged, disposed, placed or otherwise caused to become located in
any environmental medium, including, without limitation, soil, sub-surface
strata, air, water or ground water, under, at or upon any plant, facility, site,
area or property currently or previously owned or leased by ATC or any ATC
Subsidiary or on which ATC or any ATC Subsidiary is conducting or has conducted
its business or operations.
(d) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, neither ATC
nor any ATC Subsidiary has entered into or agreed to, nor does either
contemplate entering into, any consent or Order, and neither ATC nor any ATC
Subsidiary is subject to any consent or Order, in either case, relating to
compliance with, or the investigation, management or cleanup of Hazardous
Materials under, any applicable Environmental Laws.
(e) Neither ATC nor any ATC Subsidiary has been subject to any
administrative or judicial proceeding material to ATC and the ATC Subsidiaries,
taken as a whole, pursuant to, and, to the knowledge of ATC, has not been
alleged in writing by any governmental agency to be in violation in a manner
material to ATC and the ATC Subsidiaries, taken as a whole, of, applicable
Environmental Laws either now or any time during the past five years.
(f) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, neither ATC
nor any ATC Subsidiary has received notice that it is subject to any claim,
obligation, penalty, fine, liability, loss, damage or expense of whatever kind
or nature, contingent or otherwise, incurred or imposed or based upon any
provision of any applicable Environmental Law and arising out of any act or
omission of ATC or any ATC Subsidiary, its employees, agents or representatives
or, to the knowledge of ATC, arising out of the ownership, use, control or
operation by ATC or any ATC Subsidiary of any plant, facility, site, area or
property (including any plant, facility, site, area or property currently or
previously owned or leased by ATC or any ATC Subsidiary) or any other area on
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which ATC or any ATC Subsidiary is conducting or has conducted its business or
operations at or from which any Hazardous Materials were released into the
environment (the term "release" meaning any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment, and the term "environment" meaning any surface
or ground water, drinking water supply, soil, surface or subsurface strata or
medium, or the ambient air) and there is no reasonable basis for any such notice
and, to the knowledge of ATC, none are threatened or foreseen.
(g) Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, to the
knowledge of ATC, none of the assets owned by ATC or any ATC Subsidiary or any
real property owned or leased by ATC or any ATC Subsidiary contain any friable
asbestos, PCBs or underground storage tanks.
Section 4.17. INTELLECTUAL PROPERTY.
(a) Except as, individually or in the aggregate, has not had and
would not reasonably be expected to have a Material Adverse Effect: ATC does not
have knowledge of any valid grounds for any bona fide claims (A) to the effect
that the manufacture, sale, licensing or use of any product as now used, sold or
licensed or proposed for use, sale or license by ATC or any of the ATC
Subsidiaries, infringes on any copyright, patent, trademark, trade name, service
xxxx or trade secret of any third party, (B) against the use by ATC or any of
the ATC Subsidiaries of any copyrights, patents, trademarks, trade names,
service marks, trade secrets, technology, know-how or computer software programs
and applications used in the business of ATC or any of the ATC Subsidiaries as
currently conducted or as proposed to be conducted, (C) challenging the
ownership, validity or effectiveness of any of the ATC Intellectual Property
Rights material to ATC and the ATC Subsidiaries, taken as a whole, or (D)
challenging the license or legally enforceable right to use of the Third-Party
Intellectual Property Rights by ATC or any of the ATC Subsidiaries. Except as,
individually or in the aggregate, has not had and would not reasonably be
expected to have a Material Adverse Effect, ATC and each of the ATC Subsidiaries
owns, or is licensed to use (in each case free and clear of any Liens), all
Intellectual Property used in or necessary for the conduct of its business as
currently conducted.
(b) As used in this Agreement, the term "ATC INTELLECTUAL PROPERTY
RIGHTS" means the Intellectual Property owned or used by ATC or any of the ATC
Subsidiaries.
Section 4.18. STOCKHOLDERS' RIGHTS AGREEMENT. Neither ATC nor any ATC
Subsidiary has adopted, or intends to adopt, a stockholders' rights agreement or
any similar plan or agreement which limits or impairs the ability to purchase,
or become the direct or indirect beneficial owner of, capital shares or any
other equity or debt securities of ATC or any of the ATC Subsidiaries.
Section 4.19. BROKERS. Except pursuant to ATC's engagement letters with
each of the ATC Independent Advisor and Credit Suisse First Boston, no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with this Agreement, the Merger or the other
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of ATC. Section 4.19 of the ATC Disclosure Letter includes a true and
complete copy of all agreements between ATC and the ATC Independent Advisor
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pursuant to which such firm would be entitled to any payment relating to this
Agreement, the Merger or the other transactions contemplated by this Agreement.
Section 4.20. INSURANCE. ATC has delivered to SpectraSite prior to the
date hereof a list that is true and complete in all material respects of all
material insurance policies in force naming ATC, any of the ATC Subsidiaries or
employees thereof as an insured or beneficiary or as a loss payable payee or for
which ATC or any ATC Subsidiary has paid or is obligated to pay all or part of
the premiums. Except as has not had, or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, all such
insurance policies are in full force and effect, all premiums due and payable
thereon have been paid, and neither ATC nor any ATC Subsidiary has received, as
of the date hereof, written notice of any pending or threatened cancellation or
premium increase (retroactive or otherwise) with respect thereto. Each of ATC
and the ATC Subsidiaries is in compliance with all conditions contained in such
insurance policies, except where the failure to so comply has not had, or would
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 4.21. FOREIGN CORRUPT PRACTICES ACT AND INTERNATIONAL TRADE
SANCTIONS. Neither ATC, nor any ATC Subsidiaries, nor any of their respective
directors, officers, agents, employees or any other persons acting on their
behalf has, in connection with the operation of their respective businesses, (i)
used any corporate or other funds for unlawful contributions, payments, gifts or
entertainment, or made any unlawful expenditures relating to political activity
to government officials, candidates or members of political parties or
organizations, or established or maintained any unlawful or unrecorded funds in
violation of Section 104 of the Foreign Corrupt Practices Act of 1977, as
amended, or any other similar applicable foreign, Federal or state Law, (ii)
paid, accepted or received or any unlawful contributions, payments, expenditures
or gifts, or (iii) violated or operated in noncompliance with any export
restrictions, anti-boycott regulations, embargo regulations or other applicable
domestic or foreign Laws, except, in the case of clauses (i), (ii) and (iii), as
has not had, or would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
ARTICLE V
COVENANTS
Section 5.1. CONDUCT OF SPECTRASITE'S BUSINESS PENDING THE MERGER.
(a) SpectraSite covenants and agrees that between the date of this
Agreement and the earlier of the Effective Time and the termination of this
Agreement in accordance with Section 7.1, unless ATC shall otherwise agree in
writing or as otherwise contemplated by this Agreement, and subject to the
disclosure in Section 5.1 of the SpectraSite Disclosure Letter, (i) the business
of SpectraSite and the SpectraSite Subsidiaries shall be conducted only in, and
SpectraSite and the SpectraSite Subsidiaries shall not take any action except in
the ordinary course of business, in all material respects, and in a manner
consistent with prior practice, in all material respects, and (ii) SpectraSite
and the SpectraSite Subsidiaries shall use commercially reasonable efforts to
preserve intact their business organizations, to keep available the services of
their current officers and key employees and to preserve, in all material
respects, the current
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relationships of SpectraSite and the SpectraSite Subsidiaries with customers,
suppliers and other persons with which SpectraSite or the SpectraSite
Subsidiaries have business dealings.
(b) SpectraSite covenants and agrees that between the date of this
Agreement and the earlier of the Effective Time and the termination of this
Agreement in accordance with Section 7.1, unless ATC shall otherwise agree in
writing, SpectraSite shall not, nor shall SpectraSite permit any of the
SpectraSite Subsidiaries to, except as disclosed in Section 5.1 of the
SpectraSite Disclosure Letter: (i) declare or pay any dividends on or make other
distributions (whether in cash, stock or property) in respect of any of its
capital stock, except for dividends and distributions by a direct or indirect
wholly owned SpectraSite Subsidiary to its parent; (ii) subdivide, reclassify,
recapitalize, split, combine or exchange or enter into any similar transaction
with respect to any of its capital stock or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock, except for any split, combination or
reclassification of capital stock of a wholly-owned SpectraSite Subsidiary, or
any issuance or authorization or proposal to issue or authorize any securities
of a wholly-owned SpectraSite Subsidiary to SpectraSite or another wholly-owned
SpectraSite Subsidiary; (iii) repurchase, redeem or otherwise acquire any shares
of its capital stock, other than pursuant to any repurchase obligations
contained in the SpectraSite Benefit Plans; (iv) issue, deliver or sell, or
authorize, propose or reserve for issuance, delivery or sale of, or otherwise
encumber any shares of its capital stock or any securities convertible into any
such shares of its capital stock, or any rights, warrants or options to acquire
any such shares or convertible securities or any stock appreciation rights,
phantom stock plans or stock equivalents, other than the issuance of shares upon
the exercise of SpectraSite Options and SpectraSite Warrants outstanding as of
the date of this Agreement or (v) take any action that would, or would
reasonably be expected to, result in any of the conditions set forth in Article
VI not being satisfied.
(c) Without limiting the generality of the foregoing, except as set
forth in Section 5.1 of the SpectraSite Disclosure Letter or in SpectraSite's
2005 capital and operating budget previously provided to ATC and included in
Section 5.1 of the SpectraSite Disclosure Letter (or, in the event the Effective
Time occurs after December 31, 2005, then in SpectraSite's 2006 capital and
operating budget (which shall be materially consistent in relevant part with the
estimates for the applicable line items previously provided to ATC)) or as
otherwise expressly contemplated by any other provision of this Agreement
(including payment of fees and expenses to consummate the transactions
contemplated by this Agreement), during the period from the date of this
Agreement until the earlier of the Effective Time and the termination of this
Agreement in accordance with Section 7.1, unless ATC shall otherwise agree in
writing, SpectraSite shall not, nor shall SpectraSite permit any of the
SpectraSite Subsidiaries to: (i) amend the SpectraSite Certificate of
Incorporation, the SpectraSite Bylaws or the equivalent organizational documents
of any SpectraSite Subsidiary; (ii) create, assume or incur any indebtedness for
borrowed money or guaranty any such indebtedness of another person, or repay,
redeem or repurchase any such indebtedness other than borrowings under existing
lines of credit in a net aggregate amount not to exceed $10,000,000 (or under
any refinancing of such existing lines); (iii) make any loans or advances to any
other person (other than (A) loans to employees (other than officers) or
advances to employees, in each case that are made in the ordinary course in all
material respects consistent with past practice in all material respects and in
a manner that does not violate applicable Law or (B) loan or advances between
any SpectraSite Subsidiaries or
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between SpectraSite and any of the SpectraSite Subsidiaries); (iv) sell, lease,
license, sell and leaseback, mortgage, pledge or otherwise encumber any of its
assets or properties (other than in the ordinary course of business consistent
with past practice); (v) directly or indirectly acquire (x) by merging or
consolidating with, or by purchasing assets of, or by any other manner, any
division, business or equity interest of any person (including in a transaction
involving a tender or exchange offer, business combination, recapitalization,
liquidation, dissolution, joint venture or similar transaction) or (y) any
assets, in each case of clause (x) or (y) other than any such acquisition or
acquisitions that, individually, involves a purchase price not in excess of
$10,000,000 or, in the aggregate, involves a purchase price not in excess of
$25,000,000; (vi) implement or adopt any material change in its accounting
policies other than as may be required by applicable Law or GAAP; (vii) other
than as required to comply with applicable Law or a SpectraSite Benefit Plan as
in effect on the date hereof or as may be required to avoid adverse treatment
under Section 409A of the Code: (A) amend any of the terms or conditions of
employment for any of its directors or officers, (B) alter, amend or create any
obligations with respect to compensation, severance, benefits, change of control
payments or any other payments to employees, officers, directors or affiliates
of SpectraSite or SpectraSite Subsidiaries or enter into any new, or amend any
existing, employment agreements, in each case, except with respect to employees
(other than officers) effected in the ordinary course of business consistent
with past practices (including in connection with the hiring of any new
employees) or (C) make any change to the SpectraSite Benefit Plans except to the
minimum extent required to satisfy applicable Law; (viii) modify or amend in any
material respect or terminate or cancel any SpectraSite Material Contract or
enter into any agreement or contract that would qualify as a SpectraSite
Material Contract; (ix) pay, loan or advance (other than the payment of
compensation, directors' fees or reimbursement of expenses in the ordinary
course of business) any amount to, or sell, transfer or lease any properties or
assets (real, personal or mixed, tangible or intangible) to, or enter into any
agreement with, any of its officers or directors or any "affiliate" or
"associate" of any of its officers or directors; (x) form or commence the
operations of any business or any corporation, partnership, joint venture,
business association or other business organization or division thereof (other
than in the ordinary course of business consistent with past practice) or enter
into any new line of business that is material to SpectraSite and the
SpectraSite Subsidiaries, taken as a whole; (xi) make any material tax election
(other than in the ordinary course of business consistent with past practice) or
settle or compromise any material income tax liability; (xii) pay, discharge,
settle or satisfy any claims, Litigation, liabilities or obligations (whether
absolute, accrued, asserted or unasserted, contingent or otherwise) other than
in the ordinary course of business or to the extent subject to and not in excess
of reserves that are disclosed in the SpectraSite Filed SEC Reports that relate
to the matter being paid, discharged, settled or satisfied in accordance with
GAAP or that, individually or in the aggregate, are not material to SpectraSite
and the SpectraSite Subsidiaries, taken as a whole; (xiii) make or agree to make
any new capital expenditure or expenditures (including new tower construction)
which, individually, are in excess of $5,000,000 or, in the aggregate, are in
excess of $10,000,000; (xiv) take any action that (without giving effect to any
action taken or agreed to be taken by ATC or any of the ATC Affiliates) would
prevent SpectraSite from treating the Merger as a "reorganization" under Section
368 of the Code; or (xv) authorize, or commit or agree to take, any of the
foregoing actions.
(d) In connection with the continued operation of SpectraSite and
the SpectraSite Subsidiaries between the date hereof and the Closing Date,
SpectraSite will confer in good faith
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on a regular and frequent basis with one or more representatives of ATC
designated to SpectraSite regarding operational matters and the general status
of ongoing operations. SpectraSite acknowledges that ATC does not and will not
waive any rights it may have under this Agreement as a result of such
consultations. Nothing contained in this Agreement will give ATC, directly or
indirectly, the right to control or direct SpectraSite's operations prior to the
Effective Time.
Section 5.2. CONDUCT OF ATC'S BUSINESS PENDING THE MERGER.
(a) ATC covenants and agrees that between the date of this Agreement
and the earlier of the Effective Time and the termination of this Agreement in
accordance with Section 7.1, unless SpectraSite shall otherwise agree in writing
or as otherwise contemplated by this Agreement, and subject to the disclosure in
Section 5.2 of the ATC Disclosure Letter (i) the business of ATC and the ATC
Subsidiaries shall be conducted only in, and ATC and the ATC Subsidiaries shall
not take any action except in the ordinary course of business in all material
respects and in a manner consistent with prior practice in all material respects
and (ii) ATC and the ATC Subsidiaries shall use commercially reasonable efforts
to preserve intact their business organizations, to keep available the services
of their current officers and key employees and to preserve, in all material
respects, the current relationships of ATC and the ATC Subsidiaries with
customers, suppliers and other persons with which ATC or the ATC Subsidiaries
have business dealings.
(b) ATC covenants and agrees that between the date of this Agreement
and the earlier of the Effective Time and the termination of this Agreement in
accordance with Section 7.1, unless SpectraSite shall otherwise agree in
writing, ATC shall not, nor shall ATC permit any of the ATC Subsidiaries to,
except as disclosed in Section 5.2 of the ATC Disclosure Letter: (i) declare or
pay any dividends on or make other distributions (whether in cash, stock or
property) in respect of any of its capital stock, except for dividends and
distributions by a direct or indirect wholly owned ATC Subsidiary to its parent;
(ii) subdivide, reclassify, recapitalize, split, combine or exchange or enter
into any similar transaction with respect to any of its capital stock or issue
or authorize or propose the issuance of any other securities in respect of, in
lieu of or in substitution for shares of its capital stock, except for any
split, combination or reclassification of capital stock of a wholly-owned ATC
Subsidiary, or any issuance or authorization or proposal to issue or authorize
any securities of a wholly-owned ATC Subsidiary to ATC or another wholly-owned
ATC Subsidiary; (iii) repurchase, redeem or otherwise acquire any shares of its
capital stock, other than pursuant to any repurchase obligations contained in
the ATC Benefit Plans; (iv) issue, deliver or sell, or authorize, propose or
reserve for issuance, delivery or sale of, or otherwise encumber any shares of
its capital stock or any securities convertible into any such shares of its
capital stock, or any rights, warrants or options to acquire any such shares or
convertible securities or any stock appreciation rights, phantom stock plans or
stock equivalents, other than the issuance of shares upon the exercise of ATC
Options and ATC Warrants outstanding as of the date of this Agreement or
otherwise permitted to be issued under this Section 5.2(b) or (v) take any
action that would, or would reasonably be expected to, result in any of the
conditions set forth in Article VI not being satisfied.
(c) Without limiting the generality of the foregoing, except as set
forth in Section 5.2 of the ATC Disclosure Letter or in ATC's 2005 capital and
operating budget previously provided
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to SpectraSite and included in Section 5.2 of the ATC Disclosure Letter (or, in
the event the Effective Time occurs after December 31, 2005, then in ATC's 2006
capital and operating budget (which shall be materially consistent in relevant
part with the estimates for the applicable line items previously provided to
SpectraSite)) or as otherwise expressly contemplated by any other provision of
this Agreement (including payment of fees and expenses to consummate the
transactions contemplated by this Agreement), during the period from the date of
this Agreement until the earlier of the Effective Time and the termination of
this Agreement in accordance with Section 7.1, unless SpectraSite shall
otherwise agree in writing, ATC shall not, nor shall ATC permit any of the ATC
Subsidiaries to: (i) amend the ATC Certificate of Incorporation, the ATC Bylaws
or the equivalent organizational documents of any ATC Subsidiary; (ii) create,
assume or incur any indebtedness for borrowed money or guaranty any such
indebtedness of another person, or repay, redeem or repurchase any such
indebtedness other than borrowings under existing lines of credit in a net
aggregate amount not to exceed $18,600,000 (or under any refinancing of such
existing lines); (iii) make any loans or advances to any other person (other
than (A) loans to employees (other than officers) or advances to employees, in
each case that are made in the ordinary course in all material respects
consistent with past practice in all material respects in a manner that does not
violate applicable Law or (B) loan or advances between any ATC Subsidiaries or
between ATC and any of the ATC Subsidiaries); (iv) sell, lease, license, sell
and leaseback, mortgage, pledge or otherwise encumber any of its assets or
properties (other than in the ordinary course of business consistent with past
practice); (v) directly or indirectly acquire (x) by merging or consolidating
with, or by purchasing assets of, or by any other manner, any division, business
or equity interest of any person (including in a transaction involving a tender
or exchange offer, business combination, recapitalization, liquidation,
dissolution, joint venture or similar transaction) or (y) any assets, in each
case of clause (x) or (y) other than any such acquisition or acquisitions that,
individually, involves a purchase price not in excess of $18,600,000 or, in the
aggregate, involves a purchase price not in excess of $46,500,000; (vi)
implement or adopt any material change in its accounting policies other than as
may be required by applicable Law or GAAP; (vii) modify or amend in any material
respect or terminate or cancel any ATC Material Contract or enter into any
agreement or contract that would qualify as a ATC Material Contract; (viii) pay,
loan or advance (other than the payment of compensation, directors' fees or
reimbursement of expenses in the ordinary course of business) any amount to, or
sell, transfer or lease any properties or assets (real, personal or mixed,
tangible or intangible) to, or enter into any agreement with, any of its
officers or directors or any "affiliate" or "associate" of any of its officers
or directors; (ix) make or agree to make any new capital expenditure or
expenditures (including new tower construction) which, individually, are in
excess of $9,300,000 or, in the aggregate, are in excess of $18,600,000; (x)
take any action that (without giving effect to any action taken or agreed to be
taken by ATC or any of the ATC Affiliates) would prevent ATC from treating the
Merger as a "reorganization" under Section 368 of the Code; or (xi) authorize,
or commit or agree to take, any of the foregoing actions.
(d) In connection with the continued operation of ATC and the ATC
Subsidiaries between the date hereof and the Closing Date, ATC will confer in
good faith on a regular and frequent basis with one or more representatives of
SpectraSite designated to ATC regarding operational matters and the general
status of ongoing operations. ATC acknowledges that SpectraSite does not and
will not waive any rights it may have under this Agreement as a result of such
consultations. Nothing contained in this Agreement will give SpectraSite,
directly or indirectly, the right to control or direct ATC's operations prior to
the Effective Time.
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Section 5.3. ACCESS TO INFORMATION; CONFIDENTIALITY.
(a) Subject to the confidentiality agreement between ATC and
SpectraSite, dated April 11, 2005, as amended and supplemented (the
"CONFIDENTIALITY AGREEMENT"), from the date hereof to the Effective Time,
SpectraSite shall, and shall cause the officers, directors, employees, auditors,
attorneys, financial advisors, lenders and other agents (collectively, the
"REPRESENTATIVES") of SpectraSite to, upon prior advance notice, afford the
Representatives of ATC and Merger Sub reasonable access during normal business
hours to the officers, employees, agents, properties, offices and other
facilities, books and records of SpectraSite and the SpectraSite Subsidiaries,
and shall furnish ATC and Merger Sub with all financial, tax, operating and
other data and information as ATC and Merger Sub, through its Representatives,
may reasonably request. SpectraSite shall furnish to ATC and Merger Sub monthly
financial and operating data and information within thirty (30) days following
the end of each calendar month. ATC will remain subject to the terms of the
Confidentiality Agreement.
(b) Subject to the Confidentiality Agreement, from the date hereof
to the Effective Time, ATC shall, and shall cause the Representatives of ATC to,
upon prior advance notice, afford the Representatives of SpectraSite reasonable
access during normal business hours to the officers, employees, agents,
properties, offices and other facilities, books and records of ATC and the ATC
Subsidiaries, and shall furnish SpectraSite with all financial, tax, operating
and other data and information as SpectraSite, through its Representatives, may
reasonably request. ATC shall furnish to SpectraSite monthly financial and
operating data and information within thirty (30) days following the end of each
calendar month. SpectraSite will remain subject to the terms of the
Confidentiality Agreement.
(c) Notwithstanding anything to the contrary in Sections 5.3(a) and
(b), neither SpectraSite nor ATC nor any of their Subsidiaries will be required
to provide access to or to disclose information where such access or disclosure
would jeopardize the attorney-client privilege of such party or its
Subsidiaries. The parties will use their reasonable best efforts to make
appropriate substitute arrangements to permit reasonable disclosure under
circumstances in which the restrictions of the preceding sentence apply.
(d) No investigation pursuant to this Section 5.3 shall affect any
representation or warranty in this Agreement of any party hereto or any
condition to the obligations of the parties hereto.
Section 5.4. NOTIFICATION OF CERTAIN MATTERS. SpectraSite shall give
prompt notice to ATC of the occurrence, or nonoccurrence, of any event which
would reasonably be expected to result in a failure of the condition set forth
in either Sections 6.2(a) or 6.2(b); PROVIDED, HOWEVER, that the delivery of any
notice pursuant to this sentence shall not limit or otherwise affect the
remedies available hereunder to ATC. ATC shall give prompt notice to SpectraSite
of the occurrence, or nonoccurrence, of any event which would reasonably be
expected to result in a failure of the condition set forth in either Sections
6.3(a) or 6.3(b); PROVIDED, however, that the delivery of any notice pursuant to
this sentence shall not limit or otherwise affect the remedies available
hereunder to SpectraSite.
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Section 5.5. FURTHER ASSURANCES.
(a) Upon the terms and subject to the conditions hereof, each of the
parties hereto shall use its reasonable best efforts to take, or cause to be
taken, all appropriate action, to do, or cause to be done, and cooperate to do
all things necessary, proper or advisable under Law to consummate and make
effective the Merger and the other transactions contemplated by this Agreement,
including using all reasonable best efforts to (i) obtain all licenses, permits,
consents, approvals, authorizations, qualifications and orders of each
Governmental Entity and parties to contracts with SpectraSite and SpectraSite
Subsidiaries or ATC and ATC Subsidiaries as are necessary for the consummation
of the Merger and the other transactions contemplated by this Agreement and to
fulfill the conditions set forth in Article VI, (ii) make all required
regulatory filings and applications, (iii) defend all lawsuits or other legal
proceedings and contest and resist any action challenging this Agreement or the
consummation of the transactions contemplated by this Agreement, (iv) cause to
be lifted or rescinded any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the transactions
contemplated by this Agreement and (v) cause the conditions set forth in Article
VI to be satisfied. No party hereto shall take any action that would prohibit or
materially impair or delay the ability of any party to obtain any necessary
approvals of any Governmental Entity required for the transactions contemplated
by this Agreement or to otherwise consummate the transactions contemplated by
this Agreement. If at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers of each party to this Agreement and the Surviving Company shall use all
reasonable best efforts to take all such action.
(b) In connection with, and without limiting the foregoing, each of
ATC and SpectraSite and each of their Board of Directors shall (i) take all
actions necessary to ensure that no state anti-takeover statute or similar
statute or regulation is or becomes operative with respect to this Agreement,
the Merger or any other transactions contemplated by this Agreement and (ii) if
any state anti-takeover statute or similar statute or regulation is or becomes
operative with respect to this Agreement, the Merger or any other transaction
contemplated by this Agreement, take all actions necessary to ensure that this
Agreement, the Merger and any other transactions contemplated by this Agreement
may be consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to minimize the effect of such statute or regulation on
the Merger and the other transactions contemplated by this Agreement.
(c) Each of SpectraSite and ATC shall, in connection with its
obligation to use reasonable best efforts to obtain all requisite approvals and
authorizations for the transactions contemplated by this Agreement under the HSR
Act or any other federal, state or foreign antitrust or fair trade law, use its
reasonable best efforts to (i) cooperate in all respects with each other in
connection with any filing or submission and in connection with any
investigation or other inquiry, including any proceeding initiated by a private
party, (ii) promptly inform the other party of any communication received by
such party from or given by such party to, the Antitrust Division of the
Department of Justice (the "DOJ"), the Federal Trade Commission (the "FTC") or
any other Governmental Entity and of any material communication received or
given in connection with any proceeding by a private party, in each case
regarding any of the transactions contemplated hereby, (iii) permit the other
party, or the other party's legal counsel, to review any communication given by
it to, and consult with each other in advance of any
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meeting or conference with, the DOJ, the FTC or any such other Governmental
Entity or, in connection with any proceeding by a private party, with any other
person and (iv) give the other party the opportunity to attend and participate
in such meetings and conferences.
(d) If any objections are asserted with respect to the transactions
contemplated hereby under any Law or if any suit is instituted by any
Governmental Entity or any private party challenging any of the transactions
contemplated hereby as violative of any Law, each of ATC and SpectraSite shall
use its reasonable best efforts to resolve any such objections or challenge as
such Governmental Entity or private party may have to such transactions under
such Law so as to permit consummation of the transactions contemplated by this
Agreement.
(e) For purposes of this Section 5.5, "reasonable best efforts"
shall include, as necessary, the obligation to enter into a settlement,
undertaking, consent decree, stipulation or other agreement with a Governmental
Entity regarding antitrust matters that requires a party to divest or hold
separate any of its or its subsidiaries' assets; provided, however, that nothing
in this Agreement shall require or be deemed to require (i) ATC or SpectraSite
to agree to, or proffer to, divest or hold separate any assets or any portion of
any business of ATC and the ATC Subsidiaries (after giving effect to the Merger)
or agree to any restriction, condition or other limitation on the conduct of
their respective businesses, to the extent that doing so would reasonably be
expected to have, individually or in the aggregate, a Combined Company Material
Adverse Effect, or (ii) SpectraSite or ATC to agree to, or proffer to, divest or
hold separate any assets or any portion of any business of SpectraSite or any of
the SpectraSite Subsidiaries or ATC or any of the ATC Subsidiaries or agree to
any material restriction, condition or other limitation on the conduct of their
respective businesses, as the case may be, or take any other similar action,
that is not conditional on the consummation of the Merger. The term "COMBINED
COMPANY MATERIAL ADVERSE EFFECT" means a Material Adverse Effect, after giving
effect to the transactions contemplated by this Agreement, on ATC and the ATC
Subsidiaries, taken as a whole; provided, that for the avoidance of doubt it is
understood and agreed by the parties hereto that SpectraSite and the SpectraSite
Subsidiaries shall constitute Subsidiaries of ATC for purposes of determining
the existence of a Combined Company Material Adverse Effect.
(f) ATC shall perform, or cause to be performed, when due all
obligations of Merger Sub under this Agreement.
Section 5.6. NO SOLICITATION.
(a) SPECTRASITE.
(i) SpectraSite shall not, nor shall it authorize or permit
any of the SpectraSite Subsidiaries or its or their Representatives to,
directly or indirectly, (A) solicit, initiate or encourage, or take any
other action designed to, or which would reasonably be expected to,
facilitate, any SpectraSite Takeover Proposal or (B) enter into,
continue or otherwise participate in any discussions or negotiations
regarding, or furnish to any person any information, or otherwise
cooperate with, any SpectraSite Takeover Proposal. SpectraSite shall,
and shall cause the SpectraSite Subsidiaries and its Representatives
to, immediately cease and cause to be terminated all existing
discussions or negotiations with any person conducted heretofore with
respect to any SpectraSite Takeover Proposal
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and request the prompt return or destruction of all confidential
information previously furnished. Notwithstanding the foregoing, at any
time prior to obtaining the SpectraSite Stockholder Approval, in
response to a bona fide written SpectraSite Takeover Proposal that the
Board of Directors of SpectraSite determines in good faith (after
consultation with outside counsel and a financial advisor of nationally
recognized reputation) constitutes, or would reasonably be expected to
lead to, a SpectraSite Superior Proposal, and which SpectraSite
Takeover Proposal was not solicited after the date hereof, was made
after the date hereof and did not otherwise result from a breach of
this Section 5.6(a)(i), SpectraSite may, if its Board of Directors
determines in good faith (after consultation with outside counsel) that
it is required to do so to comply with its fiduciary duties to the
stockholders of SpectraSite under applicable Law, and subject to
compliance with this Section 5.6(a)(i) and after giving ATC written
notice of such determination, (x) furnish information with respect to
SpectraSite and the SpectraSite Subsidiaries to the person making such
SpectraSite Takeover Proposal (and its Representatives) pursuant to a
customary confidentiality agreement not less restrictive of such person
than the Confidentiality Agreement; PROVIDED that (1) all such
information has previously been provided to ATC or is provided to ATC
prior to the time it is provided to such person and (2) such customary
confidentiality agreement expressly provides the right for SpectraSite
to comply with the terms of this Agreement, including Section
5.6(a)(iii), and (y) participate in discussions or negotiations with
the person making such SpectraSite Takeover Proposal (and its
Representatives) regarding such SpectraSite Takeover Proposal.
The term "SPECTRASITE TAKEOVER PROPOSAL" means any inquiry,
proposal or offer from any person relating to, or that would reasonably
be expected to lead to, any direct or indirect acquisition or purchase,
in one transaction or a series of transactions, of assets or businesses
that constitute 20% or more of the revenues, net income, EBITDA
(earnings before interest expense, taxes, depreciation and
amortization) or the assets of SpectraSite and the SpectraSite
Subsidiaries, taken as a whole, or 20% or more of any class of equity
securities of SpectraSite, any tender offer or exchange offer that if
consummated would result in any person beneficially owning 20% or more
of any class of equity securities of SpectraSite, or any merger,
consolidation, business combination, recapitalization, liquidation,
dissolution, joint venture, binding share exchange or similar
transaction involving SpectraSite pursuant to which any person or the
stockholders of any person would own 20% or more of any class of equity
securities of SpectraSite or of any resulting parent company of
SpectraSite, other than the transactions contemplated by this
Agreement.
The term "SPECTRASITE SUPERIOR PROPOSAL" means a SpectraSite
Takeover Proposal (PROVIDED that for purposes of this definition
references to 20% in the definition of "SpectraSite Takeover Proposal"
shall be deemed to be references to 50%) which the Board of Directors
of SpectraSite determines in good faith (after consultation with
outside counsel and a financial advisor of nationally recognized
reputation) to be (i) more favorable to the stockholders of SpectraSite
than the Merger, taking into account all relevant factors (including
all the terms and conditions of such proposal and this Agreement
(including any changes to the terms of this Agreement proposed by ATC
in
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response to such offer or otherwise)) and (ii) reasonably capable of
being completed, taking into account all financial, legal, regulatory
and other aspects of such proposal.
(ii) Neither the Board of Directors of SpectraSite nor any
committee thereof shall, (A) (1) withdraw (or qualify or modify in a
manner adverse to ATC or Merger Sub), or publicly propose to withdraw
(or qualify or modify in a manner adverse to ATC or Merger Sub), the
adoption, approval, recommendation or declaration of advisability by
such Board of Directors or any such committee thereof of this
Agreement, the Merger or the other transactions contemplated by this
Agreement or (2) recommend, adopt, approve or declare advisable, or
propose publicly to recommend, adopt, approve or declare advisable, any
SpectraSite Takeover Proposal (any action described in this clause (A)
being referred to as a "SPECTRASITE ADVERSE RECOMMENDATION CHANGE") or
(B) adopt, approve, recommend or declare advisable, or propose to
adopt, approve, recommend or declare advisable, or allow SpectraSite or
any of the SpectraSite Subsidiaries to execute or enter into, any
letter of intent, memorandum of understanding, agreement in principle,
merger agreement, acquisition agreement, option agreement, joint
venture agreement, partnership agreement or other similar agreement
constituting or related to, or that is intended to or would reasonably
be expected to lead to, any SpectraSite Takeover Proposal (other than a
confidentiality agreement referred to in Section 5.6(a)(i) pursuant to
and in accordance with the limitations set forth therein) (a
"SPECTRASITE ACQUISITION AGREEMENT"). Notwithstanding the foregoing, at
any time prior to obtaining the SpectraSite Stockholder Approval, the
Board of Directors of SpectraSite may make a SpectraSite Adverse
Recommendation Change described in clause (A)(2) above if such Board of
Directors determines in good faith (after consultation with outside
counsel) that it is required to do so to comply with its fiduciary
duties to the stockholders of SpectraSite under applicable Law;
PROVIDED, HOWEVER, that no such SpectraSite Adverse Recommendation
Change may be made until after the fifth calendar day following ATC's
receipt of written notice (a "SPECTRASITE NOTICE OF ADVERSE
RECOMMENDATION") from SpectraSite advising ATC that the Board of
Directors of SpectraSite intends to take such action and specifying the
reasons therefor, including the terms and conditions of any SpectraSite
Superior Proposal that is the basis of the proposed action by the Board
of Directors of SpectraSite (it being understood and agreed that (x)
any amendment to any material term of such SpectraSite Superior
Proposal or (y) with respect to any previous SpectraSite Adverse
Recommendation Change, any material change in the principal stated
rationale by the Board of Directors of SpectraSite for such previous
SpectraSite Adverse Recommendation Change, shall, in the case of either
(x) or (y), require a new SpectraSite Notice of Adverse Recommendation
and a new five (5) calendar day period). In determining whether to make
a SpectraSite Adverse Recommendation Change, the Board of Directors of
SpectraSite shall take into account any changes to the terms of this
Agreement proposed by ATC in response to a SpectraSite Notice of
Adverse Recommendation or otherwise.
(iii) In addition to the obligations of SpectraSite set forth
in Sections 5.6(a)(i) and 5.6(a)(ii), (A) SpectraSite shall promptly
advise ATC orally and in writing (and in any case within 24 hours) of
any SpectraSite Takeover Proposal or any inquiry that would reasonably
be expected to lead to any SpectraSite Takeover Proposal, the material
terms and conditions of any such SpectraSite Takeover Proposal or
inquiry (including
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any changes thereto) and the identity of the person making any such
SpectraSite Takeover Proposal or inquiry and (B) SpectraSite shall (1)
keep ATC fully and promptly informed of the status and material details
(including any change to any material term thereof) of any such
SpectraSite Takeover Proposal or inquiry and (2) provide to ATC
promptly after receipt or delivery thereof with copies of all
correspondence and other written material sent or provided to
SpectraSite or any of the SpectraSite Subsidiaries from any person that
describes any of the terms or conditions of any SpectraSite Takeover
Proposal.
(iv) Nothing contained in this Section 5.6(a) shall prohibit
SpectraSite from taking and disclosing to its stockholders a position
contemplated by Rule 14(e)-2(a) or Rule 14(d)-9 promulgated under the
Exchange Act or from making any disclosure to SpectraSite's
stockholders if, in the good faith judgment of the Board of Directors
of SpectraSite, after consultation with independent outside counsel,
failure to so disclose would be inconsistent with applicable Law;
PROVIDED, HOWEVER, that all actions taken or agreed to be taken by
SpectraSite or the Board of Directors of SpectraSite or any committee
thereof shall comply with the provisions of Section 5.6(a)(ii).
(b) ATC.
(i) ATC shall not, nor shall it authorize or permit any of
the ATC Subsidiaries or its or their Representatives to, directly or
indirectly, (A) solicit, initiate or encourage, or take any other
action designed to, or which would reasonably be expected to,
facilitate, any ATC Takeover Proposal or (B) enter into, continue or
otherwise participate in any discussions or negotiations regarding, or
furnish to any person any information, or otherwise cooperate with, any
ATC Takeover Proposal. ATC shall, and shall cause the ATC Subsidiaries
and its Representatives to, immediately cease and cause to be
terminated all existing discussions or negotiations with any person
conducted heretofore with respect to any ATC Takeover Proposal and
request the prompt return or destruction of all confidential
information previously furnished. Notwithstanding the foregoing, at any
time prior to obtaining the ATC Stockholder Approval, in response to a
bona fide written ATC Takeover Proposal that the Board of Directors of
ATC determines in good faith (after consultation with outside counsel
and a financial advisor of nationally recognized reputation)
constitutes, or would reasonably be expected to lead to, an ATC
Superior Proposal, and which ATC Takeover Proposal was not solicited
after the date hereof, was made after the date hereof and did not
otherwise result from a breach of this Section 5.6(b)(i), ATC may, if
its Board of Directors determines in good faith (after consultation
with outside counsel) that it is required to do so to comply with its
fiduciary duties to the stockholders of ATC under applicable Law, and
subject to compliance with this Section 5.6(b)(i) and after giving
SpectraSite written notice of such determination, (x) furnish
information with respect to ATC and the ATC Subsidiaries to the person
making such ATC Takeover Proposal (and its Representatives) pursuant to
a customary confidentiality agreement not less restrictive of such
person than the Confidentiality Agreement; PROVIDED that (1) all such
information has previously been provided to SpectraSite or is provided
to SpectraSite prior to the time it is provided to such person and (2)
such customary confidentiality agreement expressly provides the right
for ATC to comply with the terms of this Agreement, including Section
5.6(b)(iii), and (y) participate
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in discussions or negotiations with the person making such ATC Takeover
Proposal (and its Representatives) regarding such ATC Takeover
Proposal.
The term "ATC TAKEOVER PROPOSAL" means any inquiry, proposal or
offer from any person relating to, or that would reasonably be expected
to lead to, any direct or indirect acquisition or purchase, in one
transaction or a series of transactions, of assets or businesses that
constitute 20% or more of the revenues, net income, EBITDA (earnings
before interest expense, taxes, depreciation and amortization) or the
assets of ATC and the ATC Subsidiaries, taken as a whole, or 20% or
more of any class of equity securities of ATC, any tender offer or
exchange offer that if consummated would result in any person
beneficially owning 20% or more of any class of equity securities of
ATC, or any merger, consolidation, business combination,
recapitalization, liquidation, dissolution, joint venture, binding
share exchange or similar transaction involving ATC pursuant to which
any person or the stockholders of any person would own 20% or more of
any class of equity securities of ATC or of any resulting parent
company of ATC, other than the transactions contemplated by this
Agreement.
The term "ATC SUPERIOR PROPOSAL" means an ATC Takeover Proposal
(provided that for purposes of this definition references to 20% in the
definition of "ATC Takeover Proposal" shall be deemed to be references
to 50%) which the Board of Directors of ATC determines in good faith
(after consultation with outside counsel and a financial advisor of
nationally recognized reputation) to be (i) more favorable to the
stockholders of ATC than the Merger, taking into account all relevant
factors (including all the terms and conditions of such proposal and
this Agreement (including any changes to the terms of this Agreement
proposed by SpectraSite in response to such offer or otherwise)) and
(ii) reasonably capable of being completed, taking into account all
financial, legal, regulatory and other aspects of such proposal.
(ii) Neither the Board of Directors of ATC nor any committee
thereof shall, (A) (1) withdraw (or qualify or modify in a manner
adverse to SpectraSite), or publicly propose to withdraw (or qualify or
modify in a manner adverse to SpectraSite), the adoption, approval,
recommendation or declaration of advisability by such Board of
Directors or any such committee thereof of this Agreement, the Merger
or the other transactions contemplated by this Agreement (including the
issuance of shares of ATC Common Stock pursuant to the Merger) or (2)
recommend, adopt, approve or declare advisable, or propose publicly to
recommend, adopt, approve or declare advisable, any ATC Takeover
Proposal (any action described in this clause (A) being referred to as
an "ATC ADVERSE RECOMMENDATION CHANGE") or (B) adopt, approve,
recommend or declare advisable, or propose to adopt, approve, recommend
or declare advisable, or allow ATC or any of the ATC Subsidiaries to
execute or enter into, any letter of intent, memorandum of
understanding, agreement in principle, merger agreement, acquisition
agreement, option agreement, joint venture agreement, partnership
agreement or other similar agreement constituting or related to, or
that is intended to or would reasonably be expected to lead to, any ATC
Takeover Proposal (other than a confidentiality agreement referred to
in Section 5.6(b)(i) pursuant to and in accordance with the limitations
set forth therein) (an "ATC ACQUISITION AGREEMENT"). Notwithstanding
the foregoing, at any time prior to obtaining the ATC Stockholder
Approval, the Board of Directors of ATC may
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make an ATC Adverse Recommendation Change described in clause (A)(2)
above if such Board of Directors determines in good faith (after
consultation with outside counsel) that it is required to do so to
comply with its fiduciary duties to the stockholders of ATC under
applicable Law; PROVIDED, HOWEVER, that no such ATC Adverse
Recommendation Change may be made until after the fifth calendar day
following SpectraSite's receipt of written notice (an "ATC NOTICE OF
ADVERSE RECOMMENDATION") from ATC advising SpectraSite that the Board
of Directors of ATC intends to take such action and specifying the
reasons therefor, including the terms and conditions of any ATC
Superior Proposal that is the basis of the proposed action by the Board
of Directors of ATC (it being understood and agreed that (x) any
amendment to any material term of such ATC Superior Proposal or (y)
with respect to any previous ATC Adverse Recommendation Change, any
material change in the principal stated rationale by the Board of
Directors of ATC for such previous ATC Adverse Recommendation Change,
shall, in the case of either (x) or (y), require a new ATC Notice of
Adverse Recommendation and a new five (5) calendar day period). In
determining whether to make an ATC Adverse Recommendation Change, the
Board of Directors of ATC shall take into account any changes to the
terms of this Agreement proposed by SpectraSite in response to an ATC
Notice of Adverse Recommendation or otherwise.
(iii) In addition to the obligations of ATC set forth in
Sections 5.6(b)(i) and 5.6(b)(ii), (A) ATC shall promptly advise
SpectraSite orally and in writing (and in any case within 24 hours) of
any ATC Takeover Proposal or any inquiry that would reasonably be
expected to lead to any ATC Takeover Proposal, the material terms and
conditions of any such ATC Takeover Proposal or inquiry (including any
changes thereto) and the identity of the person making any such ATC
Takeover Proposal or inquiry and (B) ATC shall (1) keep SpectraSite
fully and promptly informed of the status and material details
(including any change to any material term thereof) of any such ATC
Takeover Proposal or inquiry and (2) provide to SpectraSite promptly
after receipt or delivery thereof with copies of all correspondence and
other written material sent or provided to ATC or any of the ATC
Subsidiaries from any person that describes any of the terms or
conditions of any ATC Takeover Proposal.
(iv) Nothing contained in this Section 5.6(b) shall prohibit
ATC from taking and disclosing to its stockholders a position
contemplated by Rule 14(e)-2(a) or Rule 14(d)-9 promulgated under the
Exchange Act or from making any disclosure to ATC's stockholders if, in
the good faith judgment of the Board of Directors of ATC, after
consultation with independent outside counsel, failure to so disclose
would be inconsistent with applicable Law; PROVIDED, HOWEVER, that all
actions taken or agreed to be taken by ATC or the Board of Directors of
ATC or any committee thereof shall comply with the provisions of
Section 5.6(b)(ii).
Section 5.7. STOCKHOLDER LITIGATION. SpectraSite and ATC shall each
give the other the opportunity to participate in the defense or settlement of
any stockholder Litigation against SpectraSite and its directors and/or ATC and
its directors relating to the Merger or the other transactions contemplated by
this Agreement; PROVIDED, HOWEVER, that no such settlement shall be agreed to
without the other party's prior written consent, which consent shall not be
unreasonably conditioned, withheld or delayed.
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Section 5.8. INDEMNIFICATION.
(a) It is understood and agreed that all rights to indemnification
by SpectraSite now existing in favor of each present and former director and
officer of SpectraSite or the SpectraSite Subsidiaries (the "INDEMNIFIED
PARTIES") as provided in SpectraSite Certificate of Incorporation or the
SpectraSite Bylaws, in each case as in effect on the date of this Agreement, or
pursuant to any other agreements in effect on the date hereof, copies of which
have been provided to ATC, shall survive the Merger, and ATC shall (i) cause the
Surviving Company to continue in full force and effect for a period of at least
six years from the Effective Time and (ii) perform, or cause the Surviving
Company to perform, in a timely manner, the Surviving Company's obligations with
respect thereto. ATC agrees that any claims for indemnification hereunder as to
which they have received written notice prior to the sixth anniversary of the
Effective Time shall survive, whether or not such claims shall have been finally
adjudicated or settled as of such date.
(b) ATC shall cause the Surviving Company to, and the Surviving
Company shall, maintain in effect for six years from the Effective Time, if
available, the directors' and officers' liability insurance ("D&O INSURANCE")
containing the coverages, terms, conditions and limitations contained in the
policies currently maintained by SpectraSite (provided that the Surviving
Company may substitute therefor policies of at least the same coverage
containing terms and conditions which are not materially less favorable) with
respect to acts or omissions occurring prior to the Effective Time; PROVIDED,
HOWEVER, that in no event shall the Surviving Company be required to expend
pursuant to this Section 5.8(b) more than an amount per year equal to two
hundred percent (200%) of current annual premiums paid by SpectraSite for the
D&O Insurance. In the event that, but for the proviso to the immediately
preceding sentence, the Surviving Company would be required to expend more than
two hundred percent (200%) of current annual premiums, the Surviving Company
shall obtain the maximum amount of such insurance obtainable by payment of
annual premiums equal to two hundred percent (200%) of current annual premiums.
(c) The provisions of this Section 5.8 will survive the Effective
Time and are intended to be for the benefit of, and will be enforceable by, each
Indemnified Party and his or her heirs and representatives. ATC will pay or
cause to be paid (as incurred) all expenses, including reasonable fees and
expenses of counsel, that an Indemnified Party may incur in enforcing the
indemnity and other obligations provided for in this Section 5.8 (subject to
reimbursement if the Indemnified Party is subsequently determined not be
entitled to indemnification under Section 5.8(a)).
(d) If ATC or any of its successors or assigns (i) consolidates with
or merges into any other person and is not the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers or
conveys all or substantially all of its properties and assets to any person,
then, and in each such case, to the extent necessary, proper provisions will be
made so that the successors and assigns of ATC, as the case may be, will assume
the obligations set forth in this Section 5.8.
Section 5.9. PUBLIC ANNOUNCEMENTS. ATC and SpectraSite shall consult
with each other before issuing, and provide each other the opportunity to
review, comment upon and concur with, any press release or otherwise making any
public statements with respect to this Agreement
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or the Merger and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by Law or any
listing agreement with a national securities exchange or trading system to which
ATC or SpectraSite is a party. The parties agree that the initial press
release(s) to be issued with respect to the transactions contemplated by this
Agreement shall be in the form agreed to by the parties.
Section 5.10. REGISTRATION STATEMENT; JOINT PROXY STATEMENT.
(a) As promptly as practicable after the execution of this
Agreement, (i) ATC and SpectraSite shall jointly prepare and file with the SEC
the joint proxy statement to be sent to the stockholders of SpectraSite and to
the stockholders of ATC relating to the meeting of SpectraSite's stockholders
(the "SPECTRASITE STOCKHOLDERS' Meeting") and to the meeting of the ATC's
stockholders (the "ATC STOCKHOLDERS' MEETING") to be held to consider, in the
case of SpectraSite's stockholders, the approval and adoption of this Agreement,
and in the case of ATC's stockholders, the approval of the issuance of ATC
Common Stock in connection with the Merger (such joint proxy statement, as
amended or supplemented, being referred to herein as the "JOINT PROXY
STATEMENT") and (ii) ATC shall prepare and file with the SEC a registration
statement on Form S-4 (together with all amendments thereto, the "REGISTRATION
STATEMENT") in which the Joint Proxy Statement shall be included as a
prospectus, in connection with the registration under the Securities Act of the
shares of ATC Common Stock to be issued to the stockholders of SpectraSite
pursuant to the Merger. ATC and SpectraSite shall use their reasonable best
efforts to cause the Registration Statement to become effective as promptly as
practicable, and, prior to the Effective Time of the Registration Statement, ATC
shall take all or any action required under any applicable federal or state
securities laws in connection with such actions and the preparation of the
Registration Statement and Joint Proxy Statement. As promptly as practicable
after the Registration Statement shall have become effective, SpectraSite shall
mail the Joint Proxy Statement to its stockholders and ATC shall mail the Joint
Proxy Statement to its stockholders.
(b) No amendment to the Joint Proxy Statement or the Registration
Statement will be made by ATC or SpectraSite without the approval of the other
party (such approval not to be unreasonably conditioned, withheld or delayed).
ATC and SpectraSite each will advise the other, promptly after they receive
notice thereof, of the time when the Registration Statement has become effective
or any supplement or amendment has been filed, of the issuance of any stop
order, of the suspension of the qualification of the ATC Common Stock issuable
in connection with the Merger for offering or sale in any jurisdiction, or of
any request by the SEC for amendment of the Joint Proxy Statement or the
Registration Statement or comments thereon and responses thereto or requests by
the SEC for additional information.
Section 5.11. STOCKHOLDERS' MEETINGS.
(a) SpectraSite shall cause the SpectraSite Stockholders' Meeting to
be duly called and held as soon as practicable for the purpose of obtaining the
SpectraSite Stockholder Approval, and SpectraSite shall use its reasonable best
efforts to hold the SpectraSite Stockholders' Meeting as soon as practicable
after the date on which the Registration Statement becomes effective and on the
same date as the ATC Stockholders' Meeting. SpectraSite shall take all action
necessary in accordance with applicable Law, the SpectraSite Certificate of
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Incorporation and the SpectraSite Bylaws to duly call, give notice of and
convene the SpectraSite Stockholders' Meeting. Except in the event of a
SpectraSite Adverse Recommendation Change, SpectraSite shall use its reasonable
best efforts to solicit from holders of shares of SpectraSite Common Stock
entitled to vote at the SpectraSite Stockholders' Meeting proxies in favor of
obtaining the SpectraSite Stockholder Approval and shall take all other action
necessary or, in the reasonable judgment of ATC, helpful to secure the vote or
consent of such holders required by the DGCL, the rules and regulations of the
NYSE or this Agreement to effect the Merger. Notwithstanding any SpectraSite
Adverse Recommendation Change, this Agreement shall be submitted to the
stockholders of SpectraSite at the SpectraSite Stockholders' Meeting for the
purpose of obtaining the SpectraSite Stockholder Approval and nothing contained
herein shall be deemed to relieve SpectraSite of such obligation; PROVIDED,
HOWEVER, that the foregoing shall not be deemed to limit SpectraSite's right to
terminate this Agreement pursuant to and in accordance with Section 7.1(h).
(b) ATC shall cause the ATC Stockholders' Meeting to be duly called
and held as soon as practicable for the purpose of obtaining the ATC Stockholder
Approval and ATC shall use its reasonable best efforts to hold the ATC
Stockholders' Meeting as soon as practicable after the date on which the
Registration Statement becomes effective and on the same date as the SpectraSite
Stockholders' Meeting. ATC shall take all action necessary in accordance with
applicable Law, the ATC Certificate of Incorporation and the ATC Bylaws to duly
call, give notice of and convene the ATC Stockholders' Meeting. Except in the
event of an ATC Adverse Recommendation Change, ATC shall use its reasonable best
efforts to solicit from holders of shares of ATC Common Stock entitled to vote
at the ATC Stockholders' Meeting proxies in favor of obtaining the ATC
Stockholder Approval and shall take all other action necessary or, in the
reasonable judgment of SpectraSite, helpful to secure the vote or consent of
such holders required by the DGCL, the rules and regulations of the NYSE or this
Agreement to effect the Merger. Notwithstanding any ATC Adverse Recommendation
Change, this Agreement shall be submitted to the stockholders of ATC at the ATC
Stockholders' Meeting for the purpose of obtaining the ATC Stockholder Approval
and nothing contained herein shall be deemed to relieve ATC of such obligation;
PROVIDED, HOWEVER, that the foregoing shall not be deemed to limit ATC's right
to terminate this Agreement pursuant to and in accordance with Section 7.1(e).
Section 5.12. CONTRIBUTION OF ASSETS AND LIABILITIES AFTER EFFECTIVE
TIME. Unless ATC has contributed the entire interest in Merger Sub to a limited
liability company wholly owned by ATC as contemplated by the sixth WHEREAS
clause in the recitals to this Agreement, in which case this Section 5.12 shall
not apply, immediately after the Effective Time (i) the Surviving Company shall
contribute to a newly formed wholly-owned Subsidiary of the Surviving Company
that is a Delaware corporation or limited liability company ("NEW SPECTRASITE
HOLDCO"), all right, title and interest in and to all of the assets, properties
and rights of the Surviving Company, subject to the assumption and agreement to
pay, discharge and perform by New SpectraSite Holdco, as appropriate, all
liabilities and obligations of the Surviving Company, including the Surviving
Company's obligations under the SpectraSite Indenture and the SpectraSite Notes
(each as defined below), and (ii) the Surviving Company shall cause New
SpectraSite Holdco to, and New SpectraSite Holdco shall, accept the contribution
of all of the right, title and interest in and to all of the assets, properties
and rights of the Surviving Company and assume and agree to pay, discharge or
perform, as appropriate, all liabilities and obligations of the Surviving
Company, including the Surviving Company's obligations under the SpectraSite
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Indenture and the SpectraSite Notes. In furtherance of the foregoing, the
Surviving Company shall cause New SpectraSite Holdco to, and New SpectraSite
Holdco shall, adopt a certificate of incorporation containing indemnity and
exculpation provisions identical in form to those contained in Paragraph THIRD,
Sections 6 and 7 of the SpectraSite Certificate of Incorporation.
Section 5.13. NYSE LISTING AND DE-LISTING. Prior to the Effective Time,
ATC shall authorize for listing on the NYSE the shares of ATC Common Stock
issuable in connection with the Merger subject to official notice of issuance,
as promptly as practicable after the date hereof, and in any event prior to
Closing. The Surviving Company shall use its reasonable best efforts to cause
the SpectraSite Common Stock to be de-listed from the NYSE and de-registered
under the Exchange Act as soon as practicable following the Effective Time.
Section 5.14. COMPOSITION OF BOARD OF DIRECTORS OF ATC. At or prior to
the Effective Time, ATC shall expand the size of its Board of Directors from six
directors to ten directors. ATC shall appoint Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx
and two other directors from the SpectraSite Board of Directors (who shall be
designated by SpectraSite and must be reasonably acceptable to ATC), to the
Board of Directors of ATC effective as of the Effective Time. If either or both
of Messrs. Xxxxx and Xxxxx are unwilling or unable to serve as a director of ATC
commencing as of the Effective Time, then SpectraSite shall designate another
individual or individuals, as the case may be, from the SpectraSite Board of
Directors (who must be reasonably acceptable to ATC) to serve on the Board of
Directors of ATC as of the Effective Time.
Section 5.15. TAX TREATMENT OF MERGER. Each of ATC and SpectraSite
shall use reasonable best efforts to (a) cause the Merger to qualify as a
"reorganization" under Section 368(a) of the Code and (b) obtain the opinions of
counsel referred to in Sections 6.2(d) and 6.3(d). Following the Effective Time,
neither ATC nor any of its Subsidiaries, nor any of its affiliates, shall
knowingly take any action or cause any action to be taken which would cause the
Merger to fail to so qualify as a reorganization under Section 368(a) of the
Code.
Section 5.16. ACCOUNTANT LETTERS.
(a) SpectraSite shall use commercially reasonable efforts to cause
Ernst & Young LLP to deliver a letter relating to SpectraSite's fiscal years
2002, 2003 and 2004 dated not more than five days prior to the date on which the
Registration Statement shall have become effective and addressed to SpectraSite
and ATC in form and substance reasonably satisfactory to ATC and customary in
scope and substance for agreed upon procedures letters delivered by independent
public accountants in connection with registration statements and proxy
statements similar to the Registration Statement and the Joint Proxy Statement;
provided that, the failure of such a letter to be delivered by Ernst & Young LLP
shall not result in a failure of a condition to Closing (including Section
6.2(b) or (c) hereof).
(b) ATC shall use commercially reasonable efforts to cause Deloitte
& Touche LLP to deliver a letter relating to ATC's fiscal years 2002, 2003 and
2004 dated not more than five days prior to the date on which the Registration
Statement shall have become effective and addressed to ATC and SpectraSite in
form and substance reasonably satisfactory to SpectraSite and customary in scope
and substance for agreed upon procedures letters delivered by
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independent public accountants in connection with registration statements and
proxy statements similar to the Registration Statement and the Joint Proxy
Statement; provided, that the failure of such a letter to be delivered by
Deloitte & Touche LLP shall not result in a failure of a condition to Closing
(including Section 6.3(b) or (c) hereof).
Section 5.17. CONSENTS AND/OR AMENDMENTS OF CERTAIN BANK LENDERS.
(a) If ATC determines in its reasonable judgment that it is
necessary or advisable in connection with the consummation of the Merger, each
of SpectraSite and ATC shall use its reasonable best efforts to obtain, and/or
shall cooperate in, a request for an amendment and/or waiver under the Credit
Agreement dated as of November 19, 2004, among SpectraSite, SpectraSite's
applicable Subsidiary, TD Securities (USA) LLC and Citigroup Global Markets
Inc., as Lead Arrangers, TD Securities (USA) LLC, Citigroup Global Markets Inc.
and Deutsche Bank Securities, Inc., as Joint Book Runners, Deutsche Bank
Securities, Inc., The Royal Bank of Scotland Plc and Xxxxxx Commercial Paper
Inc., as Co-Arrangers and Co-Documentation Agents, Citicorp N.A., Inc., as
Syndications Agent, Toronto Dominion (Texas) LLC, as Administrative Agent, and
the other financial institutions party thereto (the "SPECTRASITE CREDIT
AGREEMENT") and shall seek to thereby, as of the Effective Time, (i) amend the
definition of Change of Control (as defined in the SpectraSite Credit Agreement)
to permit the Merger, and (ii) effect such other amendments to the SpectraSite
Credit Agreement as ATC shall reasonably request (in any case, the "SPECTRASITE
BANK AMENDMENT"). If, ATC requests the SpectraSite Bank Amendment but, despite
the reasonable best efforts of SpectraSite and ATC to obtain such SpectraSite
Bank Amendment, ATC and SpectraSite, on the one hand, and the Majority Lenders
(as defined in the SpectraSite Credit Agreement), on the other hand, cannot
agree to terms of the SpectraSite Bank Amendment (including any request for the
payment of fees or other amounts) that are acceptable to ATC, then ATC and
SpectraSite shall cooperate and use their respective reasonable best efforts to
refinance and replace the SpectraSite Credit Agreement with a substitute credit
facility that is, to the extent available in the marketplace, on substantially
similar terms as those contained in the SpectraSite Credit Agreement (except
that such substitute credit facility shall permit the Merger or be entered into
effective as of the Merger) and otherwise reasonably acceptable to ATC (a
"REPLACEMENT CREDIT AGREEMENT").
(b) SpectraSite and ATC shall cooperate with each other with respect
to the SpectraSite Bank Amendment and, if applicable, the Replacement Credit
Agreement. No mailing or other distribution to Lenders (as defined in the
SpectraSite Credit Agreement) of an amendment or supplement to, the documents
relating to the SpectraSite Bank Amendment or, if applicable, the Replacement
Credit Facility will be made by SpectraSite without providing ATC the
opportunity to review and comment thereon.
(c) Notwithstanding the foregoing, ATC may, in its sole discretion,
by notice to SpectraSite, elect to refinance or otherwise repay in full the
SpectraSite Credit Agreement and terminate all obligations thereunder as of the
Effective Time, and SpectraSite shall, and shall cause SpectraSite's applicable
Subsidiary to, cooperate with ATC with respect to such refinancing or other
repayment and any financing arrangements in connection therewith, including
pursuant to the terms of a Replacement Credit Agreement.
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Section 5.18. CONSENT SOLICITATION; SUPPLEMENTAL INDENTURE; TENDER
OFFER. If ATC determines in its reasonable judgment that it is necessary or
advisable in connection with the consummation of the Merger, each of SpectraSite
and ATC shall use its reasonable best efforts to, and/or shall cooperate in,
(i)(A) obtaining, effective as of the Effective Time, any consents to,
amendments to or waivers from the Indenture dated as of May 21, 2003 between
SpectraSite and the Bank of New York, as trustee (the "TRUSTEE") (the
"SPECTRASITE INDENTURE") relating to the outstanding 8.25% Senior Notes due 2010
of SpectraSite (the "SPECTRASITE NOTES"), including an amendment to the
definition of the term "Change of Control" to exclude the transactions
contemplated hereby, and causing to become effective at the Effective Time a
supplemental indenture to the Indenture reflecting any such consents, amendments
or waivers (the "SUPPLEMENTAL INDENTURE") and (B) causing the Surviving Company
to enter with the Trustee into a supplemental indenture supplementing the
SpectraSite Indenture as required by Article V of the SpectraSite Indenture or
(ii) conducting a tender offer, either on it own or in connection with a consent
solicitation contemplated by clause (i)(A) of this Section 5.18, for the
SpectraSite Notes that is conditioned upon consummation of the Merger, in the
case of each of clauses (i) and (ii), in form and substance as reasonably
requested by ATC and reasonably acceptable to SpectraSite.
Section 5.19. AFFILIATES. As soon as practicable after the date hereof,
SpectraSite shall deliver to ATC a letter identifying all persons who are, in
the opinion of SpectraSite, at the time of this Agreement is submitted for
adoption by the stockholders of SpectraSite, "affiliates" of SpectraSite for
purposes of Rule 145 under the Securities Act. SpectraSite shall use
commercially reasonable efforts to cause each such person to deliver to ATC as
of the Closing Date, a written agreement substantially in the form attached as
Exhibit 5.19 hereto; provided, that the failure of any such letter to be
delivered shall not result in a failure of a condition to Closing (including
Section 6.2(b) or (c) hereof).
Section 5.20. STANDSTILL AGREEMENTS; CONFIDENTIALITY AGREEMENTS.
Subject to their respective rights under Section 5.6 of this Agreement, during
the period from the date of this Agreement through the Effective Time, neither
ATC nor SpectraSite shall terminate, amend, modify or waive any provision of any
confidentiality or standstill agreement to which it or any of its respective
Subsidiaries is a party. During such period, ATC or SpectraSite, as the case may
be, shall enforce, to the fullest extent permitted under applicable law, the
provisions of any such agreement, including by obtaining injunctions to prevent
any breaches of such agreements and to enforce specifically the terms and
provisions thereof in any court of the United States of America or of any state
having jurisdiction.
Section 5.21. WARRANT AGREEMENT. Promptly following the Effective Time,
ATC shall, as required by Section 12 of the SpectraSite Warrant Agreement, dated
February 10, 2003 (the "WARRANT AGREEMENT"), execute a supplement thereto and
cause the notification to holders of SpectraSite Warrants as required by Section
12 of the Warrant Agreement. ATC shall at all times reserve and keep available
out of its authorized but unissued ATC Common Stock, solely for the purpose of
issuance and delivery upon exercise of the SpectraSite Warrants in accordance
with their terms, such number of shares of ATC Common Stock as shall then be
issuable or deliverable upon exercise of all outstanding but unexercised
SpectraSite Warrants.
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Section 5.22. EMPLOYEES.
(a) Until 90 days following the Effective Time, ATC shall not and
shall cause the Surviving Company not to terminate the employment of any
employee who was employed by SpectraSite immediately prior to the Effective Time
(each a "COVERED EMPLOYEE") and shall provide each such Covered Employee with
the same or better total compensation package (excluding equity based
compensation) as that in effect for each such Covered Employee immediately prior
to the Effective Time; PROVIDED, HOWEVER, that this Section 5.22(a) shall not
(i) apply to Messrs. Xxxxx, Xxxxx and Xxxxxx or (ii) prevent ATC or the
Surviving Company from terminating any Covered Employee for "cause" (as such
term is defined in the SpectraSite Executive Severance Plan B).
(b) Without in any way limiting Section 5.22(a), for a period of one
year following the Effective Time, ATC shall or shall cause the Surviving
Company to maintain in effect compensation, employee benefit plans and
arrangements which provide compensation and benefits (excluding equity based
compensation) to the Covered Employees that remain employed by the Surviving
Company which have a value substantially comparable, in the aggregate, to the
compensation and benefits provided by the SpectraSite Benefit Plans as in effect
on the date hereof to such Covered Employees.
(c) For purposes of determining eligibility to participate in, and
non-forfeitable rights under, any employee benefit plan or arrangement of ATC or
the Surviving Company, Covered Employees shall receive service credit for
service with SpectraSite (and with any predecessor or acquired entities or any
other entities for SpectraSite granted service credit) as if such service had
been completed with ATC.
(d) To the extent applicable, ATC shall or shall cause the Surviving
Company to waive or cause its insurance carriers to waive any pre-existing
condition limitation on participation and coverage applicable to any Covered
Employee or any of his or her covered dependents under any ATC or Surviving
Company health or welfare plan (a "NEW PLAN") in which such Covered Employee or
covered dependent shall become eligible to participate after the Effective Time
to the extent such Covered Employee or covered dependent was no longer subject
to such pre-existing condition limitation under the corresponding SpectraSite
Benefit Plan in which such Covered Employee or such covered dependent was
participating immediately before he or she became eligible to participate in the
New Plan. ATC shall or shall cause the Surviving Company to provide each Covered
Employee with credit for any co-payments and deductibles paid prior to the
Effective Time and during the calendar year in which the Effective Time occurs
under any SpectraSite Benefit Plan in satisfying any applicable co-payment and
deductible requirements for such calendar year under any New Plan in which such
Covered Employee participates after the Effective Time.
(e) ATC shall or shall cause the Surviving Company to recognize any
unused paid time off and sick leave hours available to each Covered Employee as
of the Effective Time under SpectraSite's paid time off policy applicable to
such Covered Employee and to recognize service by each Covered Employee with
SpectraSite for purposes of determining eligibility for vacation and sick leave
following the Effective Time under the applicable vacation and sick leave
policies of ATC or the Surviving Company.
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(f) ATC shall or shall cause the Surviving Company to assume and
honor in accordance with their terms all severance and termination plans and
agreements (including change in control provisions) applicable to Covered
Employees set forth in Section 3.14 of the SpectraSite Disclosure Letter.
(g) Without limiting the scope of Section 8.1, nothing in this
Section 5.22 shall confer any rights or remedies of any kind or description upon
any Covered Employee or any other person other than SpectraSite and ATC and
their respective successors and assigns.
ARTICLE VI
CONDITIONS
Section 6.1. CONDITIONS TO THE OBLIGATION OF EACH PARTY. The respective
obligations of ATC, Merger Sub and SpectraSite to effect the Merger are subject
to the satisfaction of the following conditions, unless waived in writing by all
parties:
(a) The SpectraSite Stockholder Approval shall have been obtained;
(b) The ATC Stockholder Approval shall have been obtained;
(c) No applicable Law and no temporary restraining order,
preliminary or permanent injunction or other judgment, order or decree entered,
enacted, promulgated, enforced or issued by any court or other Governmental
Entity of competent jurisdiction in the United States or any material foreign
jurisdiction (collectively, "JUDGMENTS") shall be and remain in effect which has
the effect of prohibiting the consummation of the Merger or the other
transactions contemplated by this Agreement; PROVIDED, HOWEVER, that the party
asserting such condition shall have used its reasonable best efforts to prevent
the entry of any such Judgment and to appeal as promptly as practicable any such
Judgment that may be entered and shall have otherwise complied with its
obligations set forth herein;
(d) The SEC shall have declared the Registration Statement effective
and no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued by the SEC and no proceeding for that
purpose shall have been initiated or threatened in writing by the SEC;
(e) The shares of ATC Common Stock to be issued in the Merger shall
have been approved for listing on the NYSE, subject to official notice of
issuance; and
(f) The waiting period applicable to the consummation of the Merger
under the HSR Act shall have expired or earlier been terminated.
Section 6.2. CONDITIONS TO OBLIGATIONS OF ATC AND MERGER SUB TO EFFECT
THE MERGER. The obligations of ATC and Merger Sub to effect the Merger are
further subject to satisfaction or waiver at or prior to the Closing of the
following conditions:
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(a) (i) The representations and warranties of SpectraSite
contained in the first sentence of Section 3.1(a) and Sections 3.2(a) and (b),
3.3(a) and (b) and 3.4(a)(i) of this Agreement shall be true and correct in all
material respects both as of the date of this Agreement and as of Closing as
though made on the date of the Closing (except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects on and as of such earlier date) and (ii) the representations
and warranties of SpectraSite in this Agreement (other than the representations
and warranties identified in clause (i)) shall be true and correct both as of
the date of this Agreement and as of Closing as though made on the date of the
Closing (except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
shall be true and correct on and as of such earlier date), except where the
failure of the representations and warranties to be so true and correct (without
giving effect to any limitation as to "materiality" or "Material Adverse Effect"
set forth therein) does not have, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on SpectraSite;
(b) SpectraSite shall have performed in all material respects all
obligations required to be performed by it under this Agreement;
(c) SpectraSite shall have delivered to ATC a certificate to the
effect that each of the conditions specified in (a) and (b) above is satisfied
in all respects; and
(d) ATC shall have received from King & Spalding LLP, counsel to
ATC, on a date immediately prior to the mailing of the Joint Proxy Statement and
on the date of Closing, opinions, in each case dated as of such respective dates
and stating that the Merger will be treated for Federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code and that
SpectraSite and ATC will each be a party to that reorganization within the
meaning of Section 368(b) of the Code. In rendering such opinions, counsel for
ATC shall be entitled to rely upon representations of officers of ATC, Merger
Sub and SpectraSite substantially in the form of Exhibits 6.2(i) and 6.2(ii)
hereto.
Section 6.3. CONDITIONS TO OBLIGATIONS OF SPECTRASITE TO EFFECT THE
MERGER. The obligations of SpectraSite to effect the Merger are further subject
to satisfaction or waiver at or prior to the Closing of the following
conditions:
(a) (i) The representations and warranties of ATC and Merger Sub
contained in the first sentence of Section 4.1(a) and Sections 4.2(a), (b) and
(c), 4.3(a), (b), (c) and (d) and 4.4(a)(i) and (ii) of this Agreement shall be
true and correct in all material respects both as of the date of this Agreement
and as of Closing as though made on the date of the Closing (except to the
extent such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall be true and correct in
all material respects on and as of such earlier date) and (ii) the
representations and warranties of ATC and Merger Sub in this Agreement (other
than the representations and warranties identified in clause (i)) shall be true
and correct both as of the date of this Agreement and as of Closing as though
made on the date of the Closing (except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct on and as of such
earlier date), except where the failure of the representations and warranties to
be so true and
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correct (without giving effect to any limitation as to "materiality" or
"Material Adverse Effect" set forth therein) does not have, and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on ATC;
(b) ATC and Merger Sub shall have performed in all material respects
all obligations required to be performed by them under this Agreement;
(c) Each of ATC and Merger Sub shall have delivered to SpectraSite a
certificate to the effect that each of the conditions specified in (a) and (b)
above is satisfied in all respects; and
(d) SpectraSite shall have received from Xxxx, Weiss, Rifkind,
Xxxxxxx and Xxxxxxxx LLP counsel to SpectraSite, on a date immediately prior to
the mailing of the Joint Proxy Statement and on the date of Closing, opinions,
in each case dated as of such respective dates and stating that the Merger will
be treated for Federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Code and that SpectraSite and ATC will each be
a party to that reorganization within the meaning of Section 368(b) of the Code.
In rendering such opinions, counsel for SpectraSite shall be entitled to rely
upon representations of officers of ATC, Merger Sub and SpectraSite
substantially in the form of Exhibits 6.2(i) and 6.2(ii) hereto.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
Section 7.1. TERMINATION. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether before
or after receipt of the SpectraSite Stockholder Approval or the ATC Stockholder
Approval, as applicable:
(a) by mutual written consent of SpectraSite, Merger Sub and ATC;
(b) by either SpectraSite or ATC:
(i) if the Merger shall not have been consummated by the one
(1) year anniversary of the execution date of this Agreement; provided,
however, that the right to terminate this Agreement pursuant to this
Section 7.1(b)(i) shall not be available to any party whose willful
breach of a representation or warranty or willful failure to fulfill
any covenant or agreement contained in this Agreement has been a
principal cause of, or resulted in, the failure of the Merger to be
consummated on or by such date;
(ii) if the ATC Stockholder Approval shall not have been
obtained at the ATC Stockholders' Meeting duly convened therefor or at
any adjournment or postponement thereof at which a proper vote on such
matters was taken;
(iii) if the SpectraSite Stockholder Approval shall not have
been obtained at the SpectraSite Stockholders' Meeting duly convened
therefor or at any adjournment or postponement thereof at which a
proper vote on such matters was taken; or
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(iv) if any Judgment having any of the effects set forth in
Section 6.1(c) shall be in effect and shall have become final and
nonappealable.
(c) by ATC, if SpectraSite shall have breached or failed to perform
in any material respect any of its representations, warranties, covenants or
other agreements contained in this Agreement, which breach or failure to perform
(i) would give rise to the failure of a condition set forth in Section 6.2(a) or
Section 6.2(b) and (ii) is incapable of being cured, or is not cured, by
SpectraSite within 30 calendar days following receipt of written notice of such
breach or failure to perform from ATC;
(d) by ATC, at any time prior to obtaining the SpectraSite
Stockholder Approval, within 10 days after a SpectraSite Adverse Recommendation
Change;
(e) by ATC, at any time prior to obtaining the ATC Stockholder
Approval, to accept and enter into a binding agreement with respect to an ATC
Superior Proposal; provided that for the termination of this Agreement pursuant
to this subsection (e) to be effected, ATC shall have complied with the
provisions of Section 5.6(b) (i), (ii) and (iii) and ATC shall have paid the ATC
Termination Fee and otherwise complied with its obligations under Section
7.2(c);
(f) by SpectraSite, if ATC or Merger Sub shall have breached or
failed to perform in any material respect any of its representations,
warranties, covenants or other agreements contained in this Agreement, which
breach or failure to perform (i) would give rise to the failure of a condition
set forth in Section 6.3(a) or Section 6.3(b) and (ii) is incapable of being
cured, or is not cured, by ATC within 30 calendar days following receipt of
written notice of such breach or failure to perform from SpectraSite;
(g) by SpectraSite, at any time prior to obtaining the ATC
Stockholder Approval, within 10 days after an ATC Adverse Recommendation Change;
or
(h) by SpectraSite, at any time prior to obtaining the SpectraSite
Stockholder Approval, to accept and enter into a binding agreement with respect
to a SpectraSite Superior Proposal; provided that for the termination of this
Agreement pursuant to this subsection (h) to be effected, SpectraSite shall have
complied with the provisions of Section 5.6(a) (i), (ii) and (iii) and
SpectraSite shall have paid the SpectraSite Termination Fee and otherwise
complied with its obligations under Section 7.2(d).
Section 7.2. EFFECT OF TERMINATION.
(a) In the event of the termination of this Agreement pursuant to
Section 7.1 hereof, this Agreement shall forthwith be terminated and have no
further effect, the obligations of the parties hereunder shall terminate, and
there shall be no liability on the part of any party hereto with respect
thereto, except that (i) the provisions of this Section 7.2 and Article VIII
shall survive the termination of this Agreement and (ii) nothing herein shall
relieve any party from liability or damages for any willful breach hereof.
(b) Except as provided in this Section 7.2, all fees and expenses
incurred in connection with the Merger, this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such fees or
expenses, whether or not the Merger
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is consummated, except that each of SpectraSite and ATC shall bear and pay
one-half of the costs and expenses incurred in connection with (i) the filing,
printing and mailing of the Registration Statement and the Joint Proxy Statement
(including SEC filing fees), (ii) the filings of the premerger notification and
report forms under the HSR Act (including filing fees), (iii) the third party
service provider fees and expenses (other than consent, amendment, waiver or
tender offer fees) incurred by the parties to obtain an amendment and/or waiver
of the SpectraSite Credit Agreement as contemplated by Section 5.17, and (iv)
the third party costs and expenses (other than consent, amendment, waiver or
tender offer fees) of the parties to obtain a consent, amendment or waiver of
the SpectraSite Indenture or in conducting a tender offer for the SpectraSite
Notes, as contemplated by Section 5.18. The Surviving Company shall pay any fees
with respect to any consent, amendment, waiver or tender offer referred to in
clauses (iii) and (iv) of the immediately preceding sentence, and any such fees
will only be payable upon consummation of the Merger. The Surviving Company
shall file any return with respect to, and shall pay, any state or local taxes
imposed on SpectraSite (including any penalties or interest with respect
thereto), if any, which are attributable to the transfer of the beneficial
ownership of SpectraSite's real property (collectively, the "REAL ESTATE
TRANSFER TAXES") as a result of the Merger.
(c) (i) In the event that: (x) (A) after the date of this Agreement,
an ATC Takeover Proposal shall have been made to ATC and such
ATC Takeover Proposal becomes publicly known prior to the ATC
Stockholders' Meeting or shall have been made directly to the
stockholders of ATC generally prior to the ATC Stockholders'
Meeting and, in either case such ATC Takeover Proposal shall not
have been withdrawn at the time of the ATC Stockholders'
Meeting, (B) this Agreement is terminated by ATC or SpectraSite
pursuant to Section 7.1(b)(ii) and (C) within 12 months after
such termination, ATC consummates an ATC Takeover Proposal or
enters into a definitive agreement to consummate an ATC Takeover
Proposal, and thereafter consummates the transactions
contemplated by such ATC Takeover Proposal (solely for purposes
of this Section 7.2(c)(i)(x)(C), the term "ATC Takeover
Proposal" shall have the meaning set forth in the definition of
ATC Takeover Proposal contained in Section 5.6(b) except that
all references to "20%" shall be deemed references to "50%"); or
(y) (A) after the date of this Agreement, an ATC Takeover
Proposal shall have been made to ATC or shall have been made
directly to the stockholders of ATC generally or shall have
otherwise become publicly known or any person shall have
publicly announced an intention (whether or not conditional) to
make an ATC Takeover Proposal, (B) this Agreement (1) is
terminated by ATC or SpectraSite pursuant to Section 7.1(b)(i)
(but only if a vote to obtain the ATC Stockholder Approval or
the ATC Stockholders' Meeting has not been held or (2) is
terminated by SpectraSite pursuant to Section 7.1(g) and (C)
within 12 months after such termination, ATC consummates an ATC
Takeover Proposal or enters into a definitive agreement to
consummate an ATC Takeover Proposal, and thereafter consummates
the transactions contemplated by such ATC Takeover Proposal,
(solely for purposes of this Section 7.2(c)(i)(y)(C), the term
"ATC Takeover Proposal" shall have the meaning set forth in the
definition of ATC
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Takeover Proposal contained in Section 5.6(b) except that all
references to "20%" shall be deemed references to "50%"); or
(z) this Agreement is terminated by ATC pursuant to Section
7.1(e),
then ATC shall pay SpectraSite a fee equal to $110,000,000 (the
"ATC TERMINATION FEE") by wire transfer of same-day funds (A) on
the date of the consummation of the transactions referred to in
clause (x)(C) or (y)(C) above, or (B) on or prior to the date of
termination, in the case of clause (z) above.
(ii) In the event that this Agreement is terminated by
SpectraSite pursuant to Section 7.1(f), then ATC shall pay
SpectraSite a fee equal to SpectraSite's out-of-pocket fees and
expenses incurred in connection with the Merger, this Agreement
and the transactions contemplated hereby (the "SPECTRASITE
EXPENSES"), but not in excess of $10,000,000, by wire transfer
of same-day funds three (3) business days after the date of such
termination of this Agreement as referred to in this sentence;
provided that the foregoing shall not limit or be deemed to
limit any damages or other remedy to which SpectraSite may be
entitled as a result of any willful breach by ATC.
(iii) ATC acknowledges that the agreements contained in this
Section 7.2(c) are an integral part of the transactions
contemplated by this Agreement, and that, without these
agreements, SpectraSite would not enter into this Agreement;
accordingly, if ATC fails promptly to pay the amount(s) due
pursuant to this Section 7.2(c), and, to obtain such payment,
SpectraSite commences a suit which results in a judgment against
ATC for the amount(s) due pursuant to this Section 7.2(c), ATC
shall pay to SpectraSite its costs and expenses (including
attorneys' fees and expenses) in connection with such suit,
together with interest on such amount(s) at the prime rate of
Citibank, N.A. in effect on the date such payment was required
to be made.
(d) (i) In the event that: (x) (A) after the date of this Agreement,
a SpectraSite Takeover Proposal shall have been made to
SpectraSite and such SpectraSite Takeover Proposal becomes
publicly known prior to the SpectraSite Stockholders' Meeting or
shall have been made directly to the stockholders of SpectraSite
generally prior to the SpectraSite Stockholders' Meeting and, in
either case such SpectraSite Takeover Proposal shall not have
been withdrawn at the time of the SpectraSite Stockholders'
Meeting, (B) this Agreement is terminated by ATC or SpectraSite
pursuant to Section 7.1(b)(iii) and (C) within 12 months after
such termination, SpectraSite consummates a SpectraSite Takeover
Proposal or enters into a definitive agreement to consummate a
SpectraSite Takeover Proposal, and thereafter consummates the
transactions contemplated by such SpectraSite Takeover Proposal
(solely for purposes of this Section 7.2(d)(i)(x)(C), the term
"SpectraSite Takeover Proposal" shall have the meaning set forth
in the definition of SpectraSite Takeover Proposal contained in
Section 5.6(a) except that all references to "20%" shall be
deemed references to "50%"); or
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(y) (A) after the date of this Agreement, a SpectraSite Takeover
Proposal shall have been made to SpectraSite or shall have been
made directly to the stockholders of SpectraSite generally or
shall have otherwise become publicly known or any person shall
have publicly announced an intention (whether or not
conditional) to make a SpectraSite Takeover Proposal, (B) this
Agreement (1) is terminated by ATC or SpectraSite pursuant to
Section 7.1(b)(i) (but only if a vote to obtain the SpectraSite
Stockholder Approval or the SpectraSite Stockholders' Meeting
has not been held or (2) is terminated by ATC pursuant to
Section 7.1(d) and (C) within 12 months after such termination,
SpectraSite consummates a SpectraSite Takeover Proposal or
enters into a definitive agreement to consummate a SpectraSite
Takeover Proposal, and thereafter consummates the transactions
contemplated by such SpectraSite Takeover Proposal, (solely for
purposes of this Section 7.2(d)(i)(y)(C), the term "SpectraSite
Takeover Proposal" shall have the meaning set forth in the
definition of SpectraSite Takeover Proposal contained in Section
5.6(a) except that all references to "20%" shall be deemed
references to "50%"); or
(z) this Agreement is terminated by SpectraSite pursuant to
Section 7.1(h),
then SpectraSite shall pay ATC a fee equal to $110,000,000 (the
"SPECTRASITE TERMINATION FEE") by wire transfer of same-day
funds (A) on the date of the consummation of the transactions
referred to in clause (x)(C) or (y)(C) above, or (B) on or prior
to the date of termination, in the case of clause (z) above.
(ii) In the event that this Agreement is terminated by ATC
pursuant to Section 7.1(c), then SpectraSite shall pay ATC a fee
equal to ATC's out-of-pocket fees and expenses incurred in
connection with the Merger, this Agreement and the transactions
contemplated hereby (the "ATC EXPENSES"), but not in excess of
$10,000,000, by wire transfer of same-day funds three (3)
business days after the date of such termination of this
Agreement as referred to in this sentence; provided that the
foregoing shall not limit or be deemed to limit any damages or
other remedy to which ATC may be entitled as a result of any
willful breach by SpectraSite.
(iii) SpectraSite acknowledges that the agreements contained in
this Section 7.2(d) are an integral part of the transactions
contemplated by this Agreement, and that, without these
agreements, ATC would not enter into this Agreement;
accordingly, if SpectraSite fails promptly to pay the amount(s)
due pursuant to this Section 7.2(d), and, to obtain such
payment, ATC commences a suit which results in a judgment
against SpectraSite for the amount(s) due pursuant to this
Section 7.2(d), SpectraSite shall pay to ATC its costs and
expenses (including attorneys' fees and expenses) in connection
with such suit, together with interest on such amount(s) at the
prime rate of Citibank, N.A. in effect on the date such payment
was required to be made.
Section 7.3. AMENDMENTS. Subject to compliance with applicable Law,
this Agreement may be amended by ATC (on behalf of itself and Merger Sub) and
SpectraSite, by action taken
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or authorized by their respective Boards of Directors, at any time before or
after approval of the matters presented in connection with the Merger by the
stockholders of ATC and SpectraSite; PROVIDED, HOWEVER, that after any approval
of the transactions contemplated by this Agreement by the stockholders of ATC
and SpectraSite, there may not be, without further approval of such
stockholders, any amendment of this Agreement that changes the amount or the
form of the consideration to be delivered under this Agreement to the holders of
SpectraSite Common Stock, or which by applicable Law otherwise expressly
requires the further approval of such stockholders. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties.
Section 7.4. WAIVER. At any time prior to the Effective Time, whether
before or after the SpectraSite Stockholders' Meeting and the ATC Stockholders'
Meeting, any party hereto may (i) extend the time for the performance of any of
the covenants, obligations or other acts of any other party hereto or (ii) waive
any inaccuracy of any representations or warranties or compliance with any of
the agreements, covenants or conditions of any other party or with any
conditions to its own obligations. Any agreement on the part of a party hereto
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party by its duly authorized
officer. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
The waiver of any such right with respect to particular facts and other
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. NO THIRD PARTY BENEFICIARIES. Other than the provisions of
Section 5.8 hereof, nothing in this Agreement shall confer any rights or
remedies upon any person other than the parties hereto.
Section 8.2. ENTIRE AGREEMENT. This Agreement, together with the
Confidentiality Agreement, the SpectraSite Disclosure Letter and the ATC
Disclosure Letter, constitutes the entire Agreement among the parties with
respect to the subject matter hereof and supersedes any prior understandings,
agreements or representations by or among the parties, written or oral, with
respect to the subject matter hereof (including the Exclusivity Agreement, dated
April 11, 2005, by and between ATC and SpectraSite, which is hereby terminated).
No amendment, modification or alteration of the terms or provisions of this
Agreement, the Confidentiality Agreement, the SpectraSite Disclosure Letter or
the ATC Disclosure Letter shall be binding unless the same shall be in writing
and duly executed by the parties hereto.
Section 8.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors. No party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the
other parties.
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Section 8.4. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 8.5. HEADINGS. The descriptive headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 8.6. GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to principles of conflicts of laws. The parties hereto hereby
declare that it is their intention that this Agreement shall be regarded as made
under the laws of the State of Delaware and that the laws of said State shall be
applied in interpreting its provisions in all cases where legal interpretation
shall be required. Each of the parties hereto: (a) agrees that this Agreement
involves at least $100,000.00, (b) agrees that this Agreement has been entered
into by the parties hereto in express reliance upon 6 DEL. C. ss. 2708, (c)
irrevocably and unconditionally submits to the exclusive jurisdiction of the
courts of the State of Delaware and of the federal courts sitting in the State
of Delaware with respect to all actions and proceedings arising out of or
relating to this Agreement and the transactions contemplated hereby; (d) agrees
that all claims with respect to any such action or proceeding shall be heard and
determined in such courts and agrees not to commence any action or proceeding
relating to this Agreement or the transactions contemplated hereby except in
such courts; (e) irrevocably and unconditionally waives any objection to the
laying of venue of any action or proceeding arising out of this Agreement or the
transactions contemplated hereby and irrevocably and unconditionally waives the
defense of an inconvenient forum; and (f) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Section 8.7. SEVERABILITY; JURISDICTION. Any term or provision of this
Agreement that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction declares that any term or
provision hereof is invalid or unenforceable, the parties agree that the court
making the determination of invalidity or unenforceability shall have the power
to reduce the scope, duration or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified after the
expiration of the time within which the judgment may be appealed.
Section 8.8. SPECIFIC PERFORMANCE. Each of the parties acknowledges and
agrees that the other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties agrees that
the other party shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the
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United States or any state thereof having jurisdiction over the parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.
Section 8.9. CONSTRUCTION. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
Section 8.10. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND
AGREEMENTS. None of the representations, warranties, covenants and agreements
set forth in this Agreement or in any instrument delivered pursuant to this
Agreement, including any rights arising out of any breach of such
representations, warranties, covenants and agreements, will survive the
Effective Time, except for Sections 5.8 and 5.22 and for those other covenants
and agreements contained in this Agreement that by their terms apply or are to
be performed in whole or in part after the Effective Time and for the provisions
of this Article VIII.
Section 8.11. CERTAIN DEFINITIONS.
(a) For purposes of this Agreement, the terms "ASSOCIATE" and
"AFFILIATE" shall have the same meaning as set forth in Rule 12b-2 promulgated
under the Exchange Act, and the term "PERSON" shall mean any individual,
corporation, partnership (general or limited), limited liability company,
limited liability partnership, trust, joint venture, joint-stock company,
syndicate, association, entity, unincorporated organization or government or any
political subdivision, agency or instrumentality thereof.
(b) For purposes of this Agreement, the phrase "MATERIAL ADVERSE
EFFECT" means, when used in connection with ATC or SpectraSite (including the
Surviving Company as the successor to SpectraSite), any (i) change, (ii) effect,
(iii) event, (iv) occurrence, (v) state of facts or (vi) development or
developments which individually or in the aggregate have resulted in, or would
reasonably be expected to result in, any change or effect, that (A) is
materially adverse to the business, financial condition or results of operations
of such person and its Subsidiaries, taken as a whole, or (B) prevents or has a
material adverse effect on the ability of ATC or SpectraSite, as applicable, to
consummate the Merger and the other transactions contemplated by this Agreement;
PROVIDED, that for purposes of analyzing whether any change, effect, event,
occurrence, state of facts or development constitutes a "MATERIAL ADVERSE
EFFECT" under this definition, the parties agree that none of the following
shall be deemed, either alone or in combination, to constitute, and none of the
following shall be taken into account in determining whether there has been or
will be, a Material Adverse Effect: (a) any change relating to the United States
or foreign economy or financial, credit or securities markets in general, so
long as the effects do not disproportionately impact ATC or SpectraSite, as
applicable, (b) any change, in and of its itself, in the trading price or
trading volume of the ATC Common Stock or the SpectraSite Common Stock, as
applicable, (c) any adverse change, effect, event, occurrence, state of facts or
development reasonably attributable to conditions affecting the industry in
which ATC and SpectraSite participate, so long as the effects do not
disproportionately impact or uniquely relate to ATC or SpectraSite, as
applicable, (d) any change in GAAP or the accounting rules and regulations of
the SEC, so long as the effects do not disproportionately impact or
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uniquely relate to ATC or SpectraSite, as applicable, (e) any change in Laws of
general applicability or interpretations thereof by any Governmental Entity, so
long as the effects do not disproportionately impact or uniquely relate to ATC
or SpectraSite, as applicable, (f) any change resulting from departures of
officers or employees of ATC or SpectraSite, as applicable, resulting from the
announcement of this Agreement), (g) any outbreak or escalation of major
hostilities in which the United States is involved or any act of terrorism
within the United States or directed against its facilities or citizens wherever
located, so long as the effects do not disproportionately impact or uniquely
relate to ATC or SpectraSite, as applicable, or (h) any change to the business
of SpectraSite or the Surviving Company resulting from the forward merger of
SpectraSite into Merger Sub and the Surviving Company's subsequent compliance
with the provisions of Section 5.12 of this Agreement.
(c) For purposes of this Agreement, the phrases "TO THE KNOWLEDGE OF
SPECTRASITE," "KNOWN TO SPECTRASITE," and similar formulations shall mean the
knowledge of the people set forth in Section 8.11(c) of the SpectraSite
Disclosure Letter.
(d) For purposes of this Agreement, the phrases "TO THE KNOWLEDGE OF
ATC," "KNOWN TO ATC," and similar formulations shall mean the knowledge of the
people set forth in Section 8.11(d) of the ATC Disclosure Letter.
Section 8.12. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy,
overnight courier or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses, or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 8.12:
If to ATC or: American Tower Corporation
Merger Sub 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telecopier: 000-000-0000
Attention: General Counsel
with a copy to: King & Spalding LLP
(which shall not 1185 Avenue of the Americas
be deemed notice) Xxx Xxxx, XX 00000
Telecopier: 212-556-2222
Attention: Xxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxxxxx, Esq.
If to SpectraSite: SpectraSite, Inc.
000 Xxxxxxx Xxxxxx Xx.
Xxxx, XX 00000
Telecopier: 000-000-0000
Attention: General Counsel
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with a copy to: Xxxx, Weiss, Rifkind, Xxxxxxx and Xxxxxxxx LLP
(which shall not 1285 Avenue of the Americas
be deemed notice) Xxx Xxxx, XX 00000
Telecopier: 212-757-3990
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Section 8.13. PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR
WAIVER. A termination of this Agreement pursuant to Section 7.1, an amendment of
this Agreement pursuant to Section 7.3 or an extension or waiver pursuant to
Section 7.4 shall, to be effective, require, in the case of ATC or SpectraSite,
action by its Board of Directors or the duly authorized designee of its Board of
Directors.
Section 8.14. WAIVER OF JURY TRIAL. EACH OF ATC, MERGER SUB AND
SPECTRASITE HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ATC, MERGER SUB
OR SPECTRASITE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
Section 8.15. SPECTRASITE DISCLOSURE LETTER AND ATC DISCLOSURE LETTER.
Each of the SpectraSite Disclosure Letter and the ATC Disclosure Letter is
qualified in its entirety by reference to the specific provisions of this
Agreement and nothing in the SpectraSite Disclosure Letter or the ATC Disclosure
Letter is intended to broaden the scope of any representation or warranty
contained in this Agreement or to create any representation, warranty, agreement
or covenant on the part of SpectraSite or ATC. The inclusion of any matter,
information, item or other disclosure set forth in any section of the
SpectraSite Disclosure Letter or the ATC Disclosure Letter shall not be deemed
to constitute an admission of any liability of SpectraSite or ATC to any third
party or otherwise imply that such matter, information or item is material or
creates a measure for materiality for purposes of this Agreement, is required to
be disclosed under this Agreement, or has had or would reasonably be expected to
have a Material Adverse Effect on SpectraSite, ATC or Merger Sub, as the case
may be. Certain matters disclosed in the SpectraSite Disclosure Letter and the
ATC Disclosure Letter are not material and/or have been disclosed for
informational purposes only.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, SpectraSite, Inc., American Tower Corporation and
Asteroid Merger Sub, LLC have each caused this Agreement to be executed as of
the date first written above by their respective officers thereunto duly
authorized.
SPECTRASITE, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
AMERICAN TOWER CORPORATION
By: /s/ Xxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: President and Chief
Executive Officer
ASTEROID MERGER SUB, LLC
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Sole Manager
