EXHIBIT
10.13
AMERICAN TOWER CORPORATION
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of February 4, 1999 by and
between American Tower Corporation, a Delaware corporation ("ATC") and Credit
Suisse First Boston Corporation ("CSFB").
WHEREAS, CSFB desires to purchase, and ATC is willing to sell 500,000
shares of Class A Common Stock, par value $.01 per share, of ATC (the "ATC
Common Stock"), all on the terms and subject to the conditions of this
Agreement; and
WHEREAS, ATC and CSFB wish to provide for the terms and conditions of the
purchase and sale of the ATC Common Stock and certain related matters;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other valuable consideration, the receipt and
adequacy whereof are hereby acknowledged, the parties hereto, intending to be
legally bound, do hereby covenant and agree as follows:
SECTION 1. Authorization and Closing.
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(a) Authorization of the Securities. ATC has authorized the issue and sale
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to CSFB, and CSFB has agreed to purchase 500,000 shares of ATC Common Stock
(collectively, the "Subject Shares") at a purchase price equal to $26.3125 per
share.
(b) Purchase and Sale of the Subject Shares. At the Closing, subject to
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the terms and conditions set forth herein, ATC shall issue to CSFB, and CSFB
shall acquire from ATC, the Subject Shares set forth in Section 1(a). CSFB will
make payment in the form of a wire transfer of immediately available funds or
bank cashier's or certified check; and
(c) The Closing. The closing (the "Closing") of the issue and acquisition
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of the Subject Shares shall take place at the offices of Sullivan & Cromwell,
New York, New York on February 9, 1999 at 10:00 a.m. or at such other date and
place as may be mutually agreeable to ATC and CSFB. Any wire transfer of funds
shall be made to such bank account in the United States as shall have been
designated in writing by ATC a reasonable time prior to the Closing.
SECTION 2. Conditions of CSFB's Obligation. The obligation of CSFB to
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acquire the Subject Shares to be purchased by CSFB at the Closing is subject to
the satisfaction (or waiver in writing by CSFB) as of the Closing of the
following conditions:
(a) Representations and Warranties; Covenants. The representations and
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warranties contained in Section 4 shall be true and correct in all material
respects at and as of the Closing as though then made, except to the extent
of changes caused by the transactions expressly contemplated herein, and
ATC shall have performed in all material respects all of the covenants
required to be performed by it hereunder prior to the Closing.
(b) Registration Rights Agreement. ATC shall have executed and delivered
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to CSFB an agreement substantially in the form of Exhibit A attached hereto
and made a part hereof (the "Registration Rights Agreement").
(c) Legal Opinion. ATC shall have delivered to CSFB an opinion of
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Sullivan & Worcester LLP, counsel for ATC, as to the due organizations and
corporate existence of ATC, the due authorization, execution, delivery and
binding effect of this Agreement, and the due authorization and valid
issuance of the Subject Shares and their fully paid and nonassessable
status.
(d) Proceedings. All corporate and other proceedings taken or
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required to be taken by ATC in connection with the transactions
contemplated hereby to be consummated at or prior to the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to CSFB and their counsel.
(e) Closing Documents. ATC shall have delivered to CSFB such documents,
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instruments and certificates relating to the transactions contemplated by this
Agreement as CSFB or its counsel may reasonably request.
SECTION 3. Conditions of ATC's Obligation. The obligation of ATC to issue
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and sell the Subject Shares to CSFB at the Closing is subject to the
satisfaction (or waiver in writing by ATC) as of the Closing of the following
conditions:
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(a) Representations and Warranties; Covenants. The representations
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and warranties of CSFB contained in Section 5 shall be true and correct in
all material respects at and as of the Closing as though then made, except
to the extent of changes caused by the transactions expressly contemplated
herein, and CSFB shall have performed in all material respects all of the
covenants required to be performed by him or it hereunder prior to the
Closing.
(b) Proceedings. All corporate and other proceedings taken or
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required to be taken by CSFB in connection with the transactions
contemplated hereby to be consummated at or prior to the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to ATC and its counsel.
(c) Closing Documents. CSFB shall have delivered to ATC such
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documents, instruments and certificates relating to the transactions
contemplated by this Agreement as ATC or its counsel may reasonably
request.
SECTION 4. Representations and Warranties of ATC. As a material
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inducement to CSFB to enter into this Agreement and purchase the Subject Shares,
ATC hereby makes the following representations and warranties to CSFB.
(a) Organization and Corporate Power. ATC and each of its subsidiaries is
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an entity duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization and is qualified to do business in each
jurisdiction in which the failure so to qualify would reasonably be expected to
have a material adverse effect on the business, financial condition or results
of operation of ATC and its subsidiaries taken as a whole. ATC and each of its
subsidiaries has all requisite corporate and other power and authority and all
material licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed
to be conducted and, in the case of ATC, to execute and deliver and consummate
the transactions contemplated by this Agreement.
(b) Material Statements and Omissions; Absence of Events. The
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information with respect to ATC included in the prospectus included in the
registration statement to be filed on or about February 8, 1999 heretofore
delivered by ATC to CSFB (the "ATC Prospectus") does not and will not
contain any untrue statement of a material fact and does not and will not
omit to state any material fact required to make any statement contained
herein or therein, in light of the circumstances under which they were
made, not misleading. Since the date of the most recent financial
statements set forth in the ATC Prospectus, except to the extent described
in the ATC Prospectus, there has been no material adverse change in ATC.
(c) Capital Stock and Related Matters.
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(i) The authorized and issued capital stock of ATC is as set forth in
the ATC Prospectus. All of the outstanding shares of the ATC Common Stock
are, and all of the Subject Shares will, upon issuance pursuant to the
provisions of this Agreement, be, duly authorized, validly issued, fully
paid and nonassessable.
(ii) There are no statutory or, to the best of ATC's knowledge,
contractual stockholder preemptive rights or rights of refusal with respect
to the issuance of the Subject Shares. ATC has not violated any applicable
federal or state securities laws in connection with the offer, sale or
issuance of any of its capital stock, and, based on the representations and
warranties of CSFB set
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forth in Section 5(g), the offer, sale and issuance of the Subject Shares
hereunder does not require registration under the Securities Act of 1933, as
amended (the "Securities Act") or any applicable state securities laws.
(d) Authorization; No Breach. The execution, delivery and performance of
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this Agreement, the Registration Rights Agreement and all other agreements
contemplated hereby to which ATC is or will be a party have been duly authorized
by ATC. This Agreement, the Registration Rights Agreement and all other
agreements contemplated hereby each constitutes a valid and binding obligation
of ATC, enforceable in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other laws of general applicability
affecting the enforcement of creditors' or secured parties' rights or debtors'
obligations generally and (ii) the availability of specific performance or other
equitable remedies may be limited by equitable principles of general
applicability (whether such matter is considered in a proceeding at law or in
equity). The (x) execution and delivery by ATC of this Agreement and the
Registration Rights Agreement, (y) offering, sale and issuance of the Subject
Shares hereunder, and (z) fulfillment of and compliance with the respective
terms hereof and thereof by ATC, do not and shall not, except in respect of
clause (z) above, for filings and other actions to be performed upon the
occurrence of certain future events, as contemplated by the Registration Rights
Agreement, (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the creation of
any lien, security interest, charge or encumbrance upon ATC's or any
subsidiary's capital stock or assets pursuant to, (iv) give any third party the
right to modify, terminate or accelerate any obligation under, (v) result in a
violation of, or (vi) require any authorization, consent, approval, exemption or
other action by or notice to any court or administrative or governmental body
pursuant to, the charter or by-laws or other organizational documents of ATC or
any subsidiary, or any law, statute, rule or regulation to which ATC or any
subsidiary is subject, or any contract, agreement, instrument, order, judgment
or decree to which ATC or any subsidiary is subject, which such authorization,
consent, approval, exemption, action or notice has not been obtained, except in
all cases for such exceptions as would not, individually or in the aggregate,
have a material adverse effect on the business, financial conditions or results
of operation of ATC and its subsidiaries taken as a whole.
(e) Brokerage. There are no claims for brokerage commissions, finders'
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fees or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement binding upon ATC or any
subsidiary. ATC shall pay, and hold CSFB harmless against, any liability, loss
or expense (including, without limitation, reasonable attorneys' fees and out-
of-pocket expenses) arising in connection with any such claim.
(f) Governmental Consent, etc. No permit, consent, approval or
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authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by ATC of
this Agreement or the other agreements contemplated hereby, or the consummation
by ATC of any other transactions contemplated hereby or thereby, except as
expressly contemplated herein or therein or in the exhibits hereto or thereto.
SECTION 5. Representations and Warranties of each CSFB. As a material
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inducement to ATC to enter into this Agreement and issue and sell the Subject
Shares CSFB hereby makes the following representations and warranties to ATC.
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(a) Organization and Power. CSFB is duly organized, validly existing and
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in good standing under the laws of its jurisdiction of organization and has all
requisite corporate or other power and authority to execute and deliver and
consummate the transactions contemplated by this Agreement.
(b) Authorization; No Breach. The execution, delivery and performance of
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this Agreement, the Registration Rights Agreement and all other agreements
contemplated hereby to which CSFB is or will be a party have been duly
authorized by CSFB. This Agreement, the Registration Rights Agreement and all
other agreements contemplated hereby to which CSFB is or will be a party each
constitutes a valid and binding obligation of such CSFB, enforceable in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other laws of general applicability affecting the enforcement of
creditors' or secured parties' rights or debtors' obligations generally and (ii)
the availability of specific performance or other equitable remedies may be
limited by equitable principles of general applicability (whether such matter is
considered in a proceeding at law or in equity). The (x) execution and delivery
by CSFB of this Agreement, the Registration Rights Agreement and all other
agreements contemplated hereby to which CSFB is or will be a party, and (y)
fulfillment of and compliance with the respective terms hereof and thereof by
CSFB, do not and shall not, except in respect of clause (y) above, for filings
and other actions to be performed upon the occurrence of certain future events,
as contemplated by the Registration Rights Agreement, (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii) constitute a
default under, (iii) result in the creation of any lien, security interest,
charge or encumbrance upon CSFB's assets pursuant to, (iv) give any third party
the right to modify, terminate or accelerate any obligation under, (v) result in
a violation of, or (vi) require any authorization, consent, approval, exemption
or other action by or notice to any court or administrative or governmental body
pursuant to, any law, statute, rule or regulation to which CSFB is subject, or
any contract, agreement, instrument, order, judgment or decree to which CSFB is
subject, which such authorization, consent, approval, exemption, action or
notice has not been obtained.
(c) Brokerage. There are no claims for brokerage commissions, finders'
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fees or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement binding upon CSFB. CSFB
shall pay and hold ATC harmless against any liability, loss or expense
(including, without limitation, reasonable attorneys' fees and out-of-pocket
expenses) arising in connection with any such claim.
(d) Governmental Consent, etc. No permit, consent, approval or
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authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by CSFB
of this Agreement or the other agreements contemplated hereby, or the
consummation by CSFB of any other transactions contemplated hereby or thereby,
except as expressly contemplated herein or therein, in the exhibits hereto or
thereto or in the ATC Prospectus.
(e) Investment Representation. CSFB is an "accredited investor" as such
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term is defined in Rule 501 of Regulation D ("Regulation D") promulgated under
the Securities Act. The Subject Shares to be acquired by CSFB are being
acquired solely for the account of CSFB for purposes of investment and not with
a view to the sale, transfer or other distribution thereof, as those terms are
used in the Securities Act and the rules and regulations promulgated thereunder;
provided, however, that nothing contained herein shall prevent CSFB and
subsequent holders of Subject Shares from transferring such securities in
compliance with the applicable provisions of the
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Securities Act (including without limitation Rule 144 promulgated thereunder or
pursuant to registration) and applicable state securities laws. CSFB covenants
and agrees that it will not sell, assign, transfer or otherwise dispose of any
of the Subject Shares to be acquired by CSFB in violation of the Securities Act
or applicable state securities laws. Each certificate for the Subject Shares
shall be imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE
STOCK PURCHASE AGREEMENT, DATED AS OF FEBRUARY 4, 1999,
BETWEEN THE ISSUER ("ATC") AND CREDIT SUISSE FIRST BOSTON
CORPORATION, AND ATC RESERVES THE RIGHT TO REFUSE THE
TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH
CONDITIONS SHALL BE FURNISHED BY ATC TO THE HOLDER HEREOF
UPON WRITTEN REQUEST AND WITHOUT CHARGE." THIS LEGEND SHALL
EXPIRE AUTOMATICALLY, AND SHALL BE REMOVED, ON FEBRUARY 5,
2001.
SECTION 6. Miscellaneous.
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(a) Termination. This Agreement may be terminated with the mutual consent
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of CSFB and ATC.
(b) Amendment. This Agreement may be amended, from time to time, by the
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parties hereto at any time prior to the Closing Date but only by an instrument
in writing signed by the parties hereto or their respective successors or
assigns.
(c) Waiver. At any time prior to the Closing Date, the parties may, either
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generally or in a particular instance and either retrospectively or
prospectively, extend the time for the performance of any of the obligations or
other acts of the other, and waive compliance by the other with any of the
agreements, covenants, conditions or other provisions contained herein. Any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
(d) Expenses. CSFB agrees to pay the reasonable out-of-pocket expenses of
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ATC incident to the negotiation, preparation, performance and enforcement of
this Agreement (including all reasonable fees and expenses of ATC's counsel,
accountants and other consultants, advisors and representatives for all
activities of such persons undertaken pursuant to this Agreement).
(e) Notices. All notices and other communications which by any provision
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of this Agreement are required or permitted to be given shall be given in
writing and shall be (a) mailed by first-class or express mail, postage prepaid,
or by recognized courier service, (b) sent by telecopy or other form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid, or by recognized courier service) written confirmation at substantially
the same time as such rapid transmission, or (c) personally delivered to the
receiving party (which if, other than an individual, shall be an officer or
other responsible party of the receiving party). All such notices and
communications shall be mailed, sent or delivered as follows:
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If to ATC: 116 Huntington Avenue
Boston, Massachusetts 02116
Attention: Joseph L. Winn, Chief Financial Officer
Telecopier No.: (617) 375-7575
with a copy to: Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attention: Norman A. Bikales, Esq.
Telecopier No.: (617) 338-2880; and
If to CSFB: 11 Madison Avenue
New York, New York 10010
Attention: Kristin M. Allen, Managing Director
Telephone No.: (212) 325-2459
with a copy to: Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: John T. Bostelman, Esq.
Telecopier No.: (212) 558-3588
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
(f) Specific Performance; Other Rights and Remedies. Each party recognizes
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and agrees that in the event the other party should refuse to perform any of its
obligations under this Agreement, the remedy at law would be inadequate and
agrees that for breach of such provisions, each party shall, in addition to such
other remedies as may be available to it at law or in equity, be entitled to
injunctive relief and to enforce its rights by an action for specific
performance to the extent permitted by applicable law. Each party hereby waives
any requirement for security or the posting of any bond or other surety in
connection with any temporary or permanent award of injunctive, mandatory or
other equitable relief. Nothing herein contained shall be construed as
prohibiting each party from pursuing any other remedies available to it under
applicable law or pursuant to the provisions of this Agreement for such breach
or threatened breach, including without limitation the recovery of damages.
(g) Survival of Representations, Warranties, Covenants and Agreements. All
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of the representations, warranties, covenants and agreements set forth in this
Agreement shall survive the Closing.
(h) Severability. If any term or provision of this Agreement shall be held
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or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed
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so that it would be valid, operative and enforceable to the maximum extent
permitted in such jurisdiction or in such case. Notwithstanding the foregoing,
in the event of any such determination the effect of which is to affect
materially and adversely either CSFB or ATC, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the intent and purpose of this Agreement
is fulfilled and consummated to the maximum extent possible.
(i) Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument, binding upon all of the parties. In
pleading or proving any provision of this Agreement, it shall not be necessary
to produce more than one of such counterparts.
(j) Section Headings. The headings contained in this Agreement are for
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reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(k) Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by, and construed in accordance
with, the applicable laws of the United States of America and the laws of the
Commonwealth of Massachusetts applicable to contracts made and performed in such
State and, in any event, without giving effect to any choice or conflict of laws
provision or rule that would cause the application of domestic substantive laws
of any other jurisdiction, except to the extent the corporate laws of the State
of Delaware are applicable. Anything in this Agreement to the contrary
notwithstanding, in the event of any dispute between the parties which results
in a legal action, litigation or other proceeding, the prevailing party shall be
entitled to receive from the non-prevailing party reimbursement for reasonable
legal fees and expenses incurred by such prevailing party in such legal action,
litigation or other proceeding.
(l) Further Acts. Each party agrees that at any time, and from time to
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time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such other
agreements, instruments or other documents and other assurances, as the other
party or its counsel reasonably deems necessary or desirable in order to carry
out the terms and conditions of this Agreement and the transactions contemplated
hereby or to facilitate the enjoyment of any of the rights created hereby or to
be created hereunder.
(m) Assignment. This Agreement shall not be assignable by any party and
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any such assignment shall be null and void, except that it shall inure to the
benefit of and be binding upon any successor to each party by operation of law,
including by way of merger, consolidation or sale of all or substantially all of
its assets, and, in the case of CSFB, any person to whom CSFB shall have
transferred any of the Subject Shares not in violation of this Agreement.
Notwithstanding the foregoing, ATC may assign its rights and remedies hereunder
to any bank or other financial institution which has loaned funds or otherwise
extended credit to it; and CSFB may assign its rights and obligations under this
Agreement and the Registration Rights Agreement, and may assign the Subject
Shares, to an affiliate that agrees to be bound thereby.
(n) Parties in Interest. This Agreement shall be binding upon and inure
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solely to the benefit of the parties and their permitted successors and assigns,
and nothing in this Agreement, express or implied, is intended to or shall
confer upon any person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement, except as otherwise provided in
Section 6(m).
(o) Certain Definitions. Terms defined in the singular shall have a
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comparable meaning when used in the plural, and vice versa, and the reference to
any gender shall be deemed to include all genders.
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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" are intended to refer to the entire section or article and not a
particular subsection thereof.
(p) Mutual Drafting. This Agreement is the result of the joint efforts of
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ATC and CSFB, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there shall be no
construction against either party based on any presumption of that party's
involvement in the drafting thereof. Each of the parties is a sophisticated
legal entity or individual that was advised by experienced counsel and, to the
extent it deemed necessary, other advisors in connection with this Agreement.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, each of the parties hereto had caused this Agreement to
be duly executed and delivered as of the day and year first above written.
American Tower Corporation
By:
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Name: Steven B. Dodge
Title: President and Chief Executive Officer
Credit Suisse First Boston Corporation
By:
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Name:
Title:
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