FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
First Amendment (the "Amendment"), dated as of June 5, 1998, by and
between American Tower Systems Corporation, a Delaware corporation ("ATS"), and
American Tower Corporation, a Delaware corporation ("ATC"), to the Agreement and
Plan of Merger, dated as of December 12, 1997, by and between ATS and ATC (the
"Original Agreement").
W I T N E S S E T H:
WHEREAS, ATC and ATS have determined that the Original Agreement
providing for the merger (the "Merger") of ATC into ATS on the terms and
conditions set forth in the Original Agreement should be amended in certain
respects as provided in this Amendment;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained and other
valuable consideration, the receipt and adequacy whereof are hereby
acknowledged, the parties hereto hereby, intending to be legally bound,
represent, warrant, covenant and agree as follows:
ARTICLE 1
DEFINED TERMS
As used herein, unless the context otherwise requires, the terms
defined in the Original Agreement (including Appendix A thereto) shall have the
respective meanings set forth therein. Terms defined in the singular shall have
a comparable meaning when used in the plural, and vice versa, and the reference
to any gender shall be deemed to include all genders. Unless otherwise defined
or the context otherwise clearly requires, terms for which meanings are provided
in this Amendment shall have such meanings when used in each Collateral Document
executed pursuant hereto or otherwise delivered pursuant hereto. References to
"hereof," "herein" or similar terms are intended to refer to the Agreement as a
whole and not a particular section, and references to "this Section" or "this
Article" are intended to refer to the entire section or article and not a
particular subsection thereof.
ARTICLE 2
AMENDMENTS OF THE ORIGINAL AGREEMENT
2.1 Amendment of Section 2.2. Section 2.2 is amended to read in its
entirety as follows:
Closing. Unless this Agreement shall have been terminated
pursuant to Section 8.1 and subject to the satisfaction or, to the
extent permitted by Applicable Law, waiver of the conditions set forth
in Article 7, the closing of the Merger (the "Closing") will take
place, at the offices of Sullivan & Worcester LLP, One Post Office
Square, Boston, Massachusetts 02109, at 10:00 a.m., on the second
business day after the date the Tower Separation occurs, unless another
date, time or place is agreed to in writing by the parties. The date on
which the Closing occurs is herein referred to as the "Closing Date."
2.2 Amendment of Section 2.5. Section 2.5 is amended to read in its
entirety as follows:
Certificate of Incorporation. Subject to the consummation of
the Merger, ATS shall file with the Secretary of State of the State of
Delaware an Amended and Restated Certificate of Incorporation, in the
form attached hereto as Exhibit A and made a part hereof (the "ATS
Restated Certificate") and which shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter changed or
amended as provided therein or by Applicable Law.
2.3 Amendment of Section 3.2. Section 3.2 is amended to add the
following at the end thereof:
In the event any ATC stockholder has not delivered a
certificate of non-foreign status of such stockholder that meets the
requirement of Section 1445 of the Code and Section 1.1445-2(b) of the
Treasury Regulations thereunder, the Surviving Corporation shall be
entitled to withhold from delivery cash (in the case of any holder of
ATC Preferred Stock) or certificates for the ATS Class A Common Stock
(in the case of any holder of ATC Common Stock) to which such
stockholder would otherwise be entitled to the extent required to
enable the Surviving Corporation to comply with the applicable
provisions of the Code.
2.4 Amendment of Appendix A. Appendix A is amended as follows:
(a) To add the following definitions in their appropriate
alphabetical order:
Acme Merger shall mean the merger of Acme Towers, Inc., a
Florida corporation ("Acme"), with and into ATSI, substantially on the
terms set forth in the draft Agreement and Plan of Merger, by and among
ATS, ATSI, Acme and its stockholders, previously furnished to ATC
(which ATS represents is the latest draft of such agreement), as the
same has heretofore been amended or as it may from time to time be
hereafter amended, modified, supplemented and restated in a manner that
does not (i) result in the issuance of any additional Common Stock,
Convertible Securities or Option Securities or (ii) increase materially
the obligations and liabilities of ATS (as so amended, modified,
supplemented and restated, the "Acme Merger Agreement").
ARS Senior Note Indentures means the indentures, as heretofore
supplemented and amended, pursuant to which the 9% Senior Subordinated
Notes due 2006 of ARS and the 9 3/4% Senior Subordinated Notes due 2005
of ARS are presently outstanding.
ATSLP shall mean American Tower Systems, L.P., a Delaware
limited partnership which is indirectly wholly-owned by ATS and which
conducts directly or through Subsidiaries substantially all of the ATS
Business and owns directly or through Subsidiaries substantially all of
the ATS Assets, other than the ATS Business conducted, and the ATS
Assets owned, by ATSI.
Excluded ATS Common Stock shall mean the shares of ATS Common
Stock issued pursuant to the consummation of the Acme Merger and the
Intracoastal Merger.
Intracoastal Merger shall mean the merger of Intracoastal
Broadcasting, Inc., a Delaware corporation ("Intracoastal"), with and
into ATSI, on the terms set forth in the Agreement and Plan of Merger,
dated as of April 14, 1998, by and among ATS, ATSI, Intracoastal and
its stockholders, as the same may from time to time be hereafter
amended, modified, supplemented and restated in a manner that does not
(i) result in the issuance of any Common Stock, Convertible Securities
or Option Securities in excess of 720,000 shares of ATS Class A common
Stock (as presently constituted) or (ii) increase materially the
obligations and liabilities of ATS (as so amended, modified,
supplemented and restated, the "Intracoastal Merger Agreement").
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PIK Preferred Stock shall mean (i) up to $400.0 million
liquidation preference of Series A Redeemable Pay-In-Kind Preferred
Stock (the "Series A Preferred") referred to in the letter agreement,
dated May 20, 1998, between Credit Suisse First Boston Corporation and
ATS, and (ii) 11-year Senior Exchangeable Pay-In-Kind Preferred Stock
issued in exchange for the Series A Preferred, (the "Exchangeable
Preferred Stock"), and (iii) any Series A Preferred or Exchangeable
Preferred Stock issued pursuant to the pay-in-kind provisions thereof.
Subsequent Permitted Acquisitions shall mean the Acme Merger
and the Intracoastal Merger.
(b) To amend the following definitions to read in their
respective entirety as follows:
ATSI shall mean American Tower Systems, Inc., a
Delaware corporation which is wholly-owned by ATS and which
conducts directly or through Subsidiaries or ATSLP
substantially all of the ATS Business and owns directly or
through Subsidiaries or ATSLP substantially all of the ATS
Assets.
Fully-Diluted Basis shall mean, when applied to the
ATC Common Stock or the ATS Common Stock, the total number of
shares of the issuer of such stock that are outstanding as of
the date of determination plus, without duplication, the total
number of all shares issuable in respect of securities
convertible into or exchangeable for ATC Common Stock or ATS
Common Stock (excluding the Excluded ATS Common Stock, but
including ATC Common Stock or ATS Common Stock that may be
issued upon conversion of Convertible Securities or the
exercise of Option Securities). Without limiting the
foregoing, the parties agree that, if the Tower Separation
occurs before the CBS Merger, the term "Fully-Diluted Basis"
would take into account any Convertible Securities or Option
Securities that ATS or the Surviving Corporation may be
required to issue upon consummation of the CBS Merger.
Option Securities shall mean all rights, options and
warrants, and calls or commitments evidencing the right, to
subscribe for, purchase or otherwise acquire shares of capital
stock or Convertible Securities, and all stock appreciation
rights, in each case whether or not the right to subscribe
for, purchase or otherwise acquire is immediately exercisable
or is conditioned upon the passage of time, the occurrence or
non-occurrence or the existence or non-existence of some other
Event.
Termination Date shall mean June 8, 1998 or such
other date as the parties may, from time to time, mutually
agree.
2.5 Amendment of Exhibits. Exhibits B-1 and B-2 of the Original
Agreement are deleted in their entirety and Exhibit A attached hereto and made a
part hereof is substituted as Exhibit B of the Original Agreement.
2.6 Amendment of ATS Disclosure Schedule.
(a) Section 5.23(c) of the ATS Disclosure Schedule is amended
to add to the description of consents that will be required (and that
ATS represents have been obtained) in order to consummate the Tower
Separation the consent of the holders of a majority in principal amount
of (i) the 9% Senior Subordinated Notes due 2006 of ARS and (ii) the 9
3/4% Senior Subordinated Notes due 2005 of ARS issuable under the ARS
Senior Note Indentures; and
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(b) Section 6.6(l) of the ATS Disclosure Schedule is amended
to read in its entirety as set forth in Exhibit B attached hereto and
made a part hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ATC
ATC hereby represents and warrants to ATS as follows (it being
understood and agreed by the parties that, except as the context otherwise
requires, the representations and warranties of ATC set forth in this Article
shall apply to each of its Subsidiaries with the same force and effect as though
each of them were named in each Section hereof):
3.1 Power and Authority; Authorization; Effect of Transaction.
(a) ATC has all requisite power and authority (corporate and
other) and has in full force and effect all Governmental Authorizations
and Private Authorizations necessary to enable it to execute and
deliver, and to perform its obligations under, this Amendment; and the
execution, delivery and performance of this Amendment has been duly
authorized by all requisite corporate or other action on the part of
ATC, and no other corporate proceedings on the part of ATC (including
without limitation the approval of the stockholders of ATC), are
necessary to authorize this Amendment. This Amendment has been duly
executed and delivered by ATC and constitutes the legal, valid and
binding obligation of ATC, enforceable in accordance with its terms,
except as such enforceability may be subject to bankruptcy, moratorium,
insolvency, reorganization, arrangement, voidable preference,
fraudulent conveyance and other similar laws relating to or affecting
the rights of creditors and except as the same may be subject to the
effect of general principles of equity. .
(b) Except as set forth in Section 4.1(c) of the ATC
Disclosure Schedule, neither the execution and delivery by ATC of this
Amendment nor the consummation of the Transactions by ATC, nor
compliance with the terms, conditions and provisions hereof by ATC:
(i) will conflict with, or result in a breach or
violation of, or constitute a default under, any Organic
Document of ATC or any Applicable Law, or will conflict with,
or result in a breach or violation of, or constitute a default
under, or permit the acceleration of any obligation or
liability in, or but for any requirement of giving of notice
or passage of time or both would constitute such a conflict
with, breach or violation of, or default under, or permit any
such acceleration in, any Material Agreement of ATC; or
(ii) will require ATC to make or obtain any
Governmental Authorization, Governmental Filing or Private
Authorization including without limitation under the FCA,
except as required by the Hart-Scott-Rodino Act and other than
any of the foregoing that have been obtained.
(c) The Original Agreement has been approved and adopted, and
the Merger has been approved, by the ATC Required Vote evidenced by the
written consent of the holders of not less than a majority of the
issued and outstanding shares of ATC Common Stock pursuant to the
provisions of Section 228 of the DCL and the Organic Documents of ATC.
ATC will promptly after the execution and delivery of such consent mail
the notice required by Section 228 of the DCL to all holders of ATC
Common Stock who did not execute such consent.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ATS
ATS hereby represents and warrants to ATC as follows (it being
understood and agreed by the parties that, except as the context otherwise
requires, the representations and warranties of ATS set forth in this Article
shall apply to each of its Subsidiaries (including the New ATS Subsidiaries)
with the same force and effect as though each of them were named in each Section
hereof):
4.1 Power and Authority; Authorization; Effect of Transaction.
(a) ATS has all requisite power and authority (corporate and
other) and has in full force and effect all Governmental Authorizations
and Private Authorizations necessary to enable it to execute and
deliver, and to perform its obligations under, this Amendment; and the
execution, delivery and performance of this Amendment has been duly
authorized by all requisite corporate or other action on the part of
ATS, and no other corporate proceedings on the part of ATS (including
without limitation the approval of the stockholders of ATS), are
necessary to authorize this Amendment. This Amendment has been duly
executed and delivered by ATS and constitutes the legal, valid and
binding obligation of ATS, enforceable in accordance with its terms,
except as such enforceability may be subject to bankruptcy, moratorium,
insolvency, reorganization, arrangement, voidable preference,
fraudulent conveyance and other similar laws relating to or affecting
the rights of creditors and except as the same may be subject to the
effect of general principles of equity.
(b) Except as set forth in Section 5.1(c) of the ATS
Disclosure Schedule, neither the execution and delivery by ATS of this
Amendment nor the consummation of the Transactions by ATS, nor
compliance with the terms, conditions and provisions hereof by ATS:
(i) will conflict with, or result in a breach or
violation of, or constitute a default under, any Organic
Document of ATS or any Applicable Law, or will conflict with,
or result in a breach or violation of, or constitute a default
under, or permit the acceleration of any obligation or
liability in, or but for any requirement of giving of notice
or passage of time or both would constitute such a conflict
with, breach or violation of, or default under, or permit any
such acceleration in, any Material Agreement of ATS; or
(ii) will require ATS to make or obtain any
Governmental Authorization, Governmental Filing or Private
Authorization including without limitation under the FCA,
except as required by the Hart-Scott-Rodino Act and other than
any of the foregoing that have been obtained.
(c) Except as set forth in Section 5.1(c) of the ATS
Disclosure Schedule, neither the execution and delivery by ATS of this
Agreement or any Collateral Document executed or required to be
executed by it pursuant hereto or thereto, nor the consummation of the
Transactions by ATS, nor compliance with the terms, conditions and
provisions hereof or thereof by ATS:
(i) will conflict with, or result in a breach or
violation of, or constitute a default under, any Organic
Document of ATS or any Applicable Law, or will conflict with,
or result in a breach or violation of, or constitute a default
under, or permit the acceleration of any obligation or
liability in, or but for any requirement of giving of notice
or passage of time or both would constitute such a conflict
with, breach or violation of, or default under, or permit any
such acceleration in, any Material Agreement of ATS; or
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(ii) will require ATS to make or obtain any
Governmental Authorization, Governmental Filing or Private
Authorization including without limitation under the FCA,
except as required by the Hart-Scott-Rodino Act and other than
any of the foregoing that have been obtained.
(d) Exhibit B hereto sets forth the names and jurisdictions of
organizations of each Subsidiary of ATS, as of the date of this
Amendment, which is not set forth in Section 5.1(d) of the ATS
Disclosure Schedule (the "New ATS Subsidiaries"). Each of the New ATS
Subsidiaries is (i) wholly-owned, (ii) an Entity which is duly
organized, validly existing and in good standing under the laws of the
respective state of organization, and (iii) duly qualified and in good
standing as a foreign corporation or other Entity in each other
jurisdiction in which the character of the property owned or leased by
it or the nature of its business or operations requires such
qualification, with full power and authority (corporate and other) to
carry on the business in which it is engaged, except for such
qualifications the failure of which to obtain, individually or in the
aggregate, would not have a Material Adverse Effect on ATS. ATS owns,
directly or indirectly, all of the outstanding capital stock and equity
interests of each of the New Subsidiaries, free and clear of all Liens
(except for Permitted Liens or except as set forth on Section 5.1(d) of
the ATS Disclosure Schedule), and all such stock or other equity
interests has been duly authorized and validly issued and is fully paid
and nonassessable. There are no outstanding Option Securities or
Convertible Securities, or agreements or understandings of any nature
whatsoever, relating to the authorized and unissued or outstanding
capital stock or equity interests of any New ATS Subsidiary. ATS has
delivered to ATC true and correct copies of the Organic Documents of
each of the New ATS Subsidiaries, as amended to date.
4.2 Certain Information. ATS has heretofore furnished to ATC true and
correct copies of the Acme Merger Agreement and the Intracoastal Merger
Agreement, all to the extent such agreements have been heretofore executed or,
to the extent not so executed, the most recent draft thereof.
ARTICLE 5
CONSENTS
ATC consents and agrees that, anything in the Original Agreement,
including without limitation Section 6.6, to the contrary notwithstanding, ATS
may (a) enter into and consummate each of the Subsequent Permitted Acquisitions,
(b) enter into agreements with respect to the issue and sale of the PIK
Preferred Stock and issue and sell the PIK Preferred Stock, and (c) enter into
and consummate each of the agreements and acquisitions and/or construct the
communications towers, in each case referred to in Exhibit C. This consent does
not include consent to ATS' or the Surviving Corporation's issuance of shares of
ATS Class A Common Stock pursuant to a public offering as contemplated by the
May 20, 1998 term sheet with respect to the PIK Preferred Stock.
ARTICLE 6
GENERAL PROVISIONS
6.1 Incorporation by Reference. The provisions of Article 9 of the
Original Agreement are incorporated herein by reference as though they were set
forth herein in their entirety.
6.2 No Other Changes. Except as specifically amended by this Amendment,
the Original Agreement shall remain in full force and effect and shall be
unaffected hereby.
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IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
date first written above.
American Tower Systems Corporation
By:_____________________________________
Name: Joseph L. Winn
Title: Chief Financial Officer
American Tower Corporation
By:______________________________________
Name: Fred R. Lummis
Title: President
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