EXHIBIT
10.14
REGISTRATION RIGHTS AGREEMENT
between
AMERICAN TOWER CORPORATION
and
CREDIT SUISSE FIRST BOSTON CORPORATION
February 4, 1999
TABLE OF CONTENTS
1. Registration of Securities....................................... 1
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(a) Registration by ATC......................................... 1
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(b) Registration at CSFB's Request.............................. 2
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(c) Registration Generally...................................... 3
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(d) Restrictions on Registration................................ 7
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(e) Additional Restrictions on Registration..................... 8
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2. Conditions to Registration....................................... 8
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3. Indemnification.................................................. 9
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(a) Indemnification by ATC...................................... 9
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(b) Indemnification by CSFB..................................... 9
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(c) Procedure................................................... 10
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(d) Contribution................................................ 11
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4. Exchange Act Registration........................................ 12
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5. Termination of Registration Obligations.......................... 13
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6. Registration Rights of Others.................................... 14
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7. Mergers, etc..................................................... 14
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8. Annual and Quarterly Reports; Other Information.................. 14
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9. Withdrawals...................................................... 14
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10. Definitions...................................................... 14
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11. Miscellaneous.................................................... 18
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(a) Assignment; Successors and Assigns.......................... 18
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(b) Specific Performance; Other Rights and Remedies............. 18
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(c) Expenses.................................................... 18
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(d) Entire Agreement............................................ 19
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(e) Waivers; Amendments......................................... 19
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(f) Notices..................................................... 19
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(g) Severability................................................ 19
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(h) Counterparts................................................ 20
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(i) Section Headings............................................ 20
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(j) Governing Law............................................... 20
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(k) Further Acts................................................ 20
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of February 4, 1999, by and between American Tower Corporation, a
Delaware corporation ("ATC"), and Credit Suisse First Boston Corporation
("CSFB"), which has heretofore agreed to acquire or has acquired the Registrable
Securities.
WHEREAS, ATC has entered into a Stock Purchase Agreement, dated as of
February 4, 1999, with CSFB (the "ATC Stock Purchase Agreement") relating to the
issue and sale of shares of Class A Common Stock of ATC (the "ATC Common
Stock"), and it is a condition of the obligation of CSFB to consummate the
transactions contemplated by the ATC Stock Purchase Agreement that ATC enter
into an agreement substantially in the form of this Agreement; and
WHEREAS, ATC has entered into and may in the future enter into agreements
pursuant to which it has agreed or will have agreed to issue securities the
holders of which have required or will require registration rights of a nature
set forth in this Agreement;
NOW, THEREFORE, in consideration of the recitals, the mutual covenants and
agreements herein contained, and other valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby covenant and agree as follows:
1. Registration of Securities.
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(a) Registration by ATC. If at any time or from time to time ATC shall
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propose to file on its behalf or on behalf of any of its security holders a
registration statement under the Securities Act with respect to any class of
Common Stock, except in connection with an Excluded Offering, ATC shall, except
to the extent not required to do so pursuant to the provisions of Section 1(d)
or 1(e), in each case:
(i) promptly give written notice to each Stockholder at least thirty
(30) days (or such shorter period as ATC deems reasonable under the
circumstances) before the anticipated filing date. Such notice shall
include the anticipated offering price or range thereof and the plan of
distribution;
(ii) include in such registration (and any related qualification under
blue sky or other state securities laws), and, at the request of a
Stockholder, in any underwriting involved therein, all Registrable
Securities specified in a written request or requests, made within ten (10)
business days after such written notice from ATC, by any Stockholder; and
(iii) use its reasonable business efforts to cause the managing
underwriter or underwriters of any proposed underwritten offering of ATC
Common Stock to permit the Registrable Securities requested to be included
in the Registration Statement for such offering on the same terms and
conditions as the ATC Common Stock included therein. Notwithstanding the
foregoing, if the managing underwriters of such offering deliver a written
opinion to the holders of such Registrable Securities that marketing
considerations require a limitation on the Registrable Securities included
in any Registration Statement filed under this Section, then, subject to
the advice of said managing underwriter or underwriters as to the size and
composition of the offering, and subject to the provisions of Section 1(d),
such limitation will be imposed pro rata (based upon the
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relative proposed public offering price of the Registrable Securities
proposed to be included) among all holders of Registrable Securities who
requested inclusion in the registration pursuant to this Section. For
purposes of this clause (iii), "Registrable Securities" shall include
Registrable Securities as defined under the 1998 Registration Rights
Agreement (as defined below).
If any Stockholder desires to have Registrable Securities registered under
this Section, it shall be required so to advise ATC in writing within ten (10)
business days after the date of ATC's notice, setting forth the number or amount
of Registrable Securities for which registration is so requested. Neither the
delivery of the notice by ATC nor of the request by any Stockholders shall in
any way obligate ATC to file a Registration Statement and, notwithstanding such
filing, ATC may, at any time prior to the effective date thereof, determine not
to offer the securities to which the registration statement relates without
liability to any of the Stockholders. No registration of Registrable Securities
effected under this Section shall relieve ATC of its obligation to effect
registration of Registrable Securities upon any request made pursuant to the
provisions of Section 1(b).
Notwithstanding the foregoing, CSFB's rights under this Section 1(a) are
subject to the written consent of the selling stockholders under Section 1(b) of
the Registration Rights Agreement, dated as of January 22, 1998, among ATC and
the stockholders named therein (the "1998 Registration Rights Agreement") but
only to the extent a registration statement is prepared upon the request of such
selling stockholders.
(b) Registration at Stockholders' Request. Upon the written request of any
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Significant Stockholder requesting that ATC effect the registration under the
Securities Act of all or part of the Registrable Securities held by CSFB,
specifying the intended method or methods of disposition of such Registrable
Securities (which may include sales from time to time on a delayed basis), ATC
shall, except to the extent not required to do so pursuant to the provisions of
this Section 1(b) or Section 1(d) or (e), promptly (and in any event within five
(5) business days) give written notice of such requested registration to all
holders of Registrable Securities and thereupon will expeditiously prepare and,
within forty-five (45) days, use its reasonable business efforts to file under
the Securities Act a registration statement and effect the registration of:
(i) the Registrable Securities which ATC has been so requested to
register by CSFB, for disposition in accordance with the intended method of
disposition stated in such request, and
(ii) all other Registrable Securities which ATC has been requested to
register by the holders of Registrable Securities by written request
delivered to ATC within ten (10) business days after the giving of such
notice by ATC (which request shall specify the intended method of
disposition of such Registrable Securities).
Each registration requested pursuant to this Section shall be effected by
the filing of a Registration Statement on Form S-1 (or such other form as the
Commission may from time to time require or permit in order to effectuate a
public offering of common stock of a company such as ATC and in a method of
disposition such as that proposed), unless the use of a different form has been
agreed upon in writing by holders of not less than a majority in value (based
upon the proposed public offering price) of the Registrable Securities as to
which registration has so been requested. Notwithstanding the preceding
sentence, ATC need not so cause a Registration Statement so filed pursuant to
the provisions of this Section on a Form S-1 (or any successor form) to become
effective under the Securities Act on more than three (3) occasions; provided,
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however, that there shall be no limit on the number of times ATC is obligated to
file Registration Statements on Form S-2 or S-3 (or any successor forms)
pursuant to the provisions of this Section (except as contemplated by the
definition of Significant Stockholder); and provided further, however, that any
registration of Registrable Securities requested by one or more Stockholders
pursuant to this Section which shall not have become and remained effective in
accordance with the provisions of Section 1(c) shall not be deemed to be a
registration for purposes of this Section.
ATC shall not grant to any person the right to request ATC to register, nor
shall ATC include in any registration pursuant to this Section, any securities
other than the Registrable Securities or securities that are the subject of
registration rights granted prior to the date hereof, without the written
consent of holders of not less than a majority in value (based upon the proposed
public offering price) of the Registrable Securities as to which registration
has been so requested.
Whenever registration requested by one or more Stockholders pursuant to
this Section is for an underwritten offering, only Registrable Securities which
are to be distributed by the underwriters designated by such Stockholders may be
included in such registration, without the written consent of holders of not
less than a majority in value (based upon the proposed public offering price) of
the Registrable Securities as to which registration has been so requested.
If Stockholders holding not less than a majority in value of the Registrable
Securities (based upon the proposed public offering price) to be included in
such registration shall determine that the number of Registrable Securities
should be limited due to market conditions or otherwise, all holders of
Registrable Securities proposing to sell Registrable Securities in such
underwritten offering shall share pro rata in the number of Registrable
Securities to be excluded from such underwritten offering, such sharing to be
based on the value (based upon the proposed public offering price) of the
respective numbers of Registrable Securities as to which registration has been
requested by such Stockholders.
(c) Registration Generally. If and when ATC shall be required by the
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provisions of this Section to effect the registration of Registrable Securities
under the Securities Act, ATC will use its reasonable business efforts to effect
such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto it will, subject to the provisions of Section 1(d) and 1(e), as
expeditiously as possible:
(i) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the holders of the
Registrable Securities covered by such Registration Statement and the
managing underwriters, if any, copies of all such documents proposed to be
filed, which documents will be made available, on a timely basis, for
review by such holders and underwriters, and their respective counsel, and
ATC will not file any Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which the holders of not less than
a majority in value (based upon the proposed public offering price) of the
Registrable Securities covered by such Registration Statement or the
managing underwriters, if any, shall reasonably have objected;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to any Registration Statement, and such supplements to
the Prospectus, as may be reasonably requested by any holder of Registrable
Securities included in such Registration Statement or any underwriter of
Registrable Securities or as may be required by the rules, regulations or
instructions applicable to the registration form utilized by ATC or by the
Securities Act, the
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Exchange Act or otherwise necessary to keep such Registration Statement
effective for the applicable period and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement during the applicable period in accordance with the intended
method or methods of disposition by the holders of such Registrable
Securities set forth in such Registration Statement or Prospectus as so
supplemented;
(ii) notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such
Person) confirm such advice in writing,
(A) when the Prospectus or any supplement thereto or any
amendment or post-effective amendment to the Registration
Statement has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when
the same has become effective,
(B) of any request by the Commission for amendments or post-
effective amendments to the Registration Statement or
supplements to the Prospectus or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for such
purpose,
(D) if at any time the representations and warranties of ATC
contemplated by paragraph (xv) below cease to be true and
correct in all material respects,
(E) of the receipt by ATC of any notification with respect to
the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and
(F) of the existence of any Event which results in the
Registration Statement, the Prospectus or any document
incorporated therein by reference containing an untrue
statement of material fact or omitting 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;
(iv) use its reasonable business efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement or any
qualification referred to in paragraphs (iii)(C) and (iii)(E) at the
earliest possible moment;
(v) if requested by the managing underwriters or a holder of
Registrable Securities being sold in connection with an underwritten
offering, immediately incorporate in a Prospectus supplement or post-
effective amendment to the Registration Statement such information as the
managing underwriters or the holders of not less than a majority in value
(based upon the proposed public offering price) of the Registrable
Securities being sold reasonably a request to have included
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therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with
respect to the amount of other Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment promptly after being notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(vi) at the request of any selling holder of Registrable Securities,
furnish to such selling holder of Registrable Securities and each managing
underwriter, if any, without charge, at least one signed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(vii) deliver to each selling holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Registration
Statement, each Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto (in each case including all exhibits,
except that ATC shall not be obligated to furnish any such selling holder
more than two copies of such exhibits other than incorporation documents),
as such persons may reasonably request, together with such documents
incorporated by reference in such Registration Statement or Prospectus, and
such other documents as such selling holder or underwriter may reasonably
request in order to facilitate the disposition of the Registrable
Securities covered by such registration statement; ATC consents to the use
of each Prospectus or any supplement thereto by each selling holder of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by each
Registration Statement or any amendment thereto;
(viii) prior to any public offering of Registrable Securities, use its
reasonable business efforts to register or qualify or cooperate with the
selling holders of Registrable Securities, the underwriters, if any, and
their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any selling holder or
any underwriter reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that ATC will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process or general taxation in any such jurisdiction where it is not
then so subject;
(ix) cooperate with the selling holders of Registrable Securities and
the underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to
be in such denominations and registered in such names as the underwriters
may reasonably request at least two (2) business days prior to any sale of
Registrable Securities to the underwriters;
(x) use its reasonable business efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary or advisable to enable the sellers thereof or the underwriters,
if any, to consummate the disposition of such Registrable Securities;
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(xi) if any event contemplated by paragraph (iii) (F) above shall
exist, prepare and furnish to such holders a post-effective amendment to
the Registration Statement or supplement to the Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(xii) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or other trading market
on which securities of the same class are then listed or traded or, if the
Registrable Securities are not then listed on a securities exchange, and if
the NASD is reasonably likely to permit the inclusion of the Registrable
Securities on NASDAQ, use its reasonable business efforts to facilitate the
inclusion of the Registrable Securities on NASDAQ;
(xiii) not later than the effective date of the Registration
Statement, provide a CUSIP number for all Registrable Securities and
provide the applicable transfer agent or agents with printed certificates
or instruments for the Registrable Securities which are in a form eligible
for deposit with Depository Trust Company or other transferee and otherwise
meeting the requirements of any securities exchange or other trading market
on which such Registrable Securities are listed or traded;
(xiv) enter into agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
offer and sale of the Registrable Securities is an underwritten offering:
(A) make such representations and warranties to the holders of
such Registrable Securities and the underwriters, if any, in
form, substance and scope, reasonably satisfactory to such
holders and underwriters, as are customarily made by issuers
to underwriters in primary underwritten offerings;
(B) obtain opinions and updates thereof of counsel which counsel
and opinions to ATC (in form, scope and substance) shall be
reasonably satisfactory to the underwriters, if any, and the
holders of not less than a majority in value (based on the
proposed public offering price) of the Registrable
Securities being sold, addressed to each selling holder and
the underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such
holders and underwriters;
(C) obtain so-called "cold comfort" letters and updates thereof
from ATC's independent public accountants addressed to the
selling holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with
primary
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underwritten offerings and such other matters as may be
reasonably requested by such holders and underwriters;
(D) if an underwriting agreement is entered into, cause the same
to set forth in full the indemnification provisions and
procedures of Section 3 (or such other substantially similar
provisions and procedures as the underwriters shall
reasonably request) with respect to all parties to be
indemnified pursuant to said Section; and
(E) deliver such documents and certificates as may be reasonably
requested by the holders of not less than a majority in
value (based on the proposed public offering price) of the
Registrable Securities being sold or the underwriters, if
any, to evidence compliance with the provisions of this
Section and with any customary conditions contained in the
underwriting agreement or other agreement entered into by
ATC.
The requirements of subparagraphs (B), (C) and (D) of this paragraph
(xiv) shall be complied with at the effectiveness of such Registration
Statement, each closing under any underwriting or similar agreement as
and to the extent required thereunder and from time to time as may
reasonably be requested by a majority in value (based on the proposed
public offering price) of Registrable Securities being sold pursuant
to such Registration Statement, all in a manner consistent with
customary industry practice;
(xv) make available to a representative of the holders of not less
than a majority in value (based on the proposed public offering price) of
the Registrable Securities, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney or
accountant retained by such holders or underwriter, all financial,
corporate and other records and documents of ATC, and cause ATC's officers,
directors and employees to supply all information reasonably requested by
any such representatives, underwriter, attorney or accountant in connection
with the registration, with respect to each at such time or times as the
person requesting such information shall reasonably determine; provided,
however, that any records, information or documents that are designated by
ATC in writing as confidential shall be kept confidential by such persons
unless disclosure of such records, information or documents is required by
court or administrative order or applicable law or otherwise becomes public
without breach of the provisions of this paragraph;
(xvi) otherwise use its reasonable business efforts to comply with the
Securities Act, the Exchange Act, all applicable rules and regulations of
the Commission and all applicable state blue sky and other securities laws,
rules and regulations, and make generally available to its security
holders, earnings statements satisfying the provisions of Section 11(a) of
the Securities Act, no later than thirty (30) days after the end of any 12-
month period (or ninety (90) days if the end of such 12-month period
coincides with the end of a fiscal quarter or fiscal year, respectively) of
ATC (A) commencing at the end of any month in which Registrable Securities
are sold to underwriters in an underwritten offering, or, if not sold to
underwriters in such an offering, (B) beginning with the first month
commencing after the effective date of the Registration Statement, which
statements shall cover said 12-month periods;
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(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD);
(xviii) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after the initial filing of the Registration Statement) provide copies of
such document to the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel, make ATC's
representatives available for discussion of such document with such persons
and make such changes in such document prior to the filing thereof as any
such persons may reasonably request; and
(xix) cooperate and assist in any filings required to be made with the
FCC, including without limitation the obtaining of any consents of the FCC
required in connection with any change in control of ATC.
(d) Restrictions on Registration. Anything in Section 1 to the contrary
notwithstanding, ATC shall not be required to register Registrable Securities on
behalf of any Stockholder to the following extent and subject to the following
conditions: in the case of any registration initially proposed to be filed
solely on behalf of ATC if, in the opinion of the managing underwriters of the
proposed public offering (a copy of which opinion shall have been furnished to
any Stockholder requesting registration (or each such holder if ATC has elected
not to notify the holders of Registrable Securities pursuant to the provisions
of Section 1(a) because it is not required to include any Registrable Securities
in such registration pursuant to the provisions of this Section)), such
registration (or such portion thereof as may be specified in such opinion) would
adversely affect the proposed public offering price or the plan of distribution
contemplated by the proposed ATC offering, in which event ATC shall (unless in
the opinion of such managing underwriters (a copy of which shall be similarly
furnished) to do so would materially and adversely affect the proposed public
offering price or such plan of distribution)) cause such Registration Statement
to remain in effect and to be phrased in such a manner so that the Stockholders
requesting registration thereunder may, during a period commencing not less than
sixty (60) days or more than ninety (90) days (or such other period as such
managing underwriters may approve as not so adversely affecting the proposed
public offering price or such plan of distribution) after the closing of the
sale to the underwriters pursuant to the original distribution thereunder, offer
and sell under such Registration Statement the Registrable Securities referred
to in the request of registration pursuant to this Section 1.
(e) Additional Restrictions on Registration. Anything in this Agreement to
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the contrary notwithstanding, ATC shall not be required to file a registration
statement requested pursuant to this Section 1 if ATC has furnished, to the
Stockholders requesting a registration statement to be filed, a certificate
signed by the Chief Executive Officer or the Chief Financial Officer of ATC
stating that in the good faith judgment of the signer of such certificate the
filing of a registration statement would require the disclosure of material
information that ATC has a bona fide business purpose for preserving as
confidential and that is not then otherwise required to be disclosed; provided,
however, that ATC's obligation to use its reasonable business efforts to effect
a registration pursuant to this Section 1 may not be deferred pursuant to this
paragraph (e) for more than ninety (90) days from the date of receipt of a
written request from such Stockholders, and provided further, however, that ATC
shall not utilize this right more than once during any twelve (12) month period
unless the Stockholders requesting such registration have been afforded a
reasonable period (not less than ninety (90) days) during such twelve (12) month
period to effect such registration.
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2. Conditions to Registration.
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Each Stockholder's right to have Registrable Securities included in any
Registration Statement filed by ATC in accordance with the provisions of Section
1 shall be subject to the following conditions:
(a) The holders on whose behalf such Registrable Securities are to be
included shall be required to furnish ATC in a timely manner all
information required by the applicable rules and regulations of the
Commission concerning the proposed method of sale or other disposition of
such Registrable Securities, the identity of and compensation to be paid to
any proposed underwriters to be employed in connection therewith, and such
other information as may be reasonably requested by ATC or its counsel
properly to prepare and file such Registration Statement in accordance with
applicable provisions of the Securities Act;
(b) If any such holder desires to sell and distribute Registrable
Securities over a period of time, or from time to time, at then prevailing
market prices, then any such holder shall execute and deliver to ATC such
written undertakings as ATC and its counsel may reasonably request in order
to assure full compliance with applicable provisions of the Securities Act
and the Exchange Act;
(c) In the case of any underwritten offering on behalf of the holders
of Registrable Securities pursuant to the provisions of Section 1(b), the
managing underwriters (other than CSFB or its affiliates) shall be subject
to the approval of ATC, such approval not to be unreasonably withheld,
delayed or conditioned;
(d) In the case of any registration requested pursuant to the
provisions of Section 1(a), the offering price for any Registrable
Securities to be so registered shall be no less than for any securities of
the same class then to be registered for sale for the account of ATC or
other security holders, unless such Registrable Securities are to be
offered from time to time based on the prevailing market price;
(e) Upon receipt of any notice from ATC of the existence of any event
of the nature referred to in paragraph (iii) of Section 1(c), such holder
will forthwith discontinue disposition of Registrable Securities until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by such paragraph, or until it is advised in writing by ATC
that the use of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings which are incorporated by reference
in the Prospectus, and, if so directed by ATC, such holder will deliver to
ATC all copies, other than permanent file copies then in such holder's
possession, of the Prospectus covering such Registrable Securities current
at the time of receipt of such notice;
(f) In the event any filing with or consent of the FCC is required,
cooperate and assist in any such filings, including without limitation
providing all information required in obtaining any consents of the FCC
required in connection with any change in control of ATC; and
(g) The holders of Registrable Securities requesting registration
shall pay all Registration Expenses in connection with such registration
pursuant to the provisions of this Section.
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3. Indemnification.
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(a) Indemnification by ATC. In the event of the registration of any
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Registrable Securities under the Securities Act pursuant to the provisions
hereof, ATC will, to the extent permitted by Applicable Law, indemnify and
hold harmless each Stockholder on whose behalf such Registrable Securities
shall have been registered, its partners, trustees, advisory committee
members, directors, officers, employees, representatives and agents, each
underwriter, broker and dealer, if any, who participates in the offering or
sale of such Registrable Securities, and each other Person, if any, who
controls such Stockholder or any such underwriter, broker or dealer within
the meaning of the Securities Act or the Exchange Act (each such person
being hereinafter sometimes referred to as an "indemnified person"), from
and against any Claims, joint or several, to which such indemnified person
may become subject, including without limitation under the Securities Act,
the Exchange Act or any state securities or blue sky law, insofar as such
Claims arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained or incorporated by
reference in any Registration Statement or Prospectus or any amendment or
supplement thereto or in any preliminary prospectus, or any document
incorporated by reference therein, or arise out of or based upon the
omission or alleged omission to state therein 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, and will
reimburse each such indemnified person for any legal or any other expenses
reasonably incurred by such indemnified person in connection with
investigating or defending, settling or satisfying any such Claim;
provided, however, that ATC will not be liable in any such case to the
extent that any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
or incorporated by reference in the Registration Statement, Prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to ATC by such indemnified person specifically
stating that it is for use in preparation thereof. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of such indemnified person and shall survive the transfer of such
Registrable Securities by such Stockholder.
(b) Indemnification by Holders of Registrable Securities. In the
----------------------------------------------------
event of the registration of any Registrable Securities under the
Securities Act pursuant to the provisions hereof, each Stockholder on whose
behalf such Registrable Securities shall have been registered will, to the
extent permitted by Applicable Law, severally but not jointly, indemnify
and hold harmless, ATC, each director of ATC, each officer of ATC who signs
the registration statement, each underwriter, broker and dealer, if any,
who participates in the offering and sale of such Registrable Securities
and each other Person, if any, who controls ATC or any such underwriter,
broker or dealer within the meaning of the Securities Act or the Exchange
Act (each such person including without limitation ATC being hereinafter
sometimes referred to as an "indemnified person"), against any Claims,
joint or several, to which such indemnified person may become subject,
including without limitation under the Securities Act, the Exchange Act or
any state securities or blue sky law, insofar as such Claims arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference in any Registration
Statement or Prospectus or any amendment or supplement thereto or any
document incorporated by reference therein, or arise out of or are based
upon the omission or alleged omission to state therein 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,
provided that such untrue statement or alleged untrue statement or omission
or alleged omission has been made or incorporated therein in reliance upon
and in conformity with written information furnished to ATC by such
Stockholder specifically stating that it is for use in preparation thereof,
and will reimburse each such indemnified person for any legal or any other
expenses reasonably incurred by ATC or such indemnified person in
connection with investigating or defending, settling or satisfying any such
Claim. Such indemnity
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shall remain in full force and effect regardless of any investigation made
by or on behalf of such indemnified person and shall survive the transfer
of such Registrable Securities by such Stockholder. In no event shall the
liability of any such Stockholder hereunder be greater in amount than the
dollar amount of the proceeds received by such Stockholder upon the sale of
the Registrable Securities giving rise to such indemnification obligation.
(c) Procedure. Promptly after receipt by an indemnified party of
---------
notice of the commencement of any action (including any governmental
investigation or inquiry), such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written
notice to such indemnifying party of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than
pursuant to the provisions of this Section and then only to the extent such
indemnifying party has been prejudiced, or otherwise adversely affected
thereby and in no event shall such failure relieve the indemnifying party
from any other liability which it may have to the indemnified party. In
case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and to the extent
that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party, the indemnifying party shall
not, except as hereinafter provided, be responsible for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof, other than reasonable cost of investigation. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such Claim.
Such indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be the expense of such indemnified
party, unless (i) the indemnifying party has agreed to pay such fees and
expenses, (ii) the indemnifying party shall have failed to assume the
defense of such action or proceeding or has failed to employ counsel
reasonably satisfactory to such indemnified party in any such action or
proceeding, or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such indemnified party and
the indemnifying party, and such indemnified party shall have been advised
in writing by counsel that representation of both parties by the same
counsel would be inappropriate due to actual or potential material
differing interests between them (in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of such indemnified party, it being understood,
however, that the indemnifying party shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys at any time for such
indemnified party and any other indemnified parties, which firm shall be
designated in writing by such indemnified parties). The indemnifying party
shall not be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such
action or proceeding, the indemnifying party agrees to indemnify and hold
harmless such indemnified parties from and against any loss or liability by
reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this Section
------------
or in Section 4 is unavailable, because prohibited or restricted by
Applicable Law, to a party that would have been an
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indemnified party under either such Section in respect of any Claims
referred to therein, then each party that would have been an indemnifying
party thereunder shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such Claims in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and such
indemnified party on the other in connection with the statement or omission
which resulted in such Claims, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or such
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding the provisions of this Section, a holder of
Registrable Securities shall not, as an indemnified party, be required to
contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by such indemnified party or its
Affiliates and distributed to the public were offered to the public exceeds
the amount of any damages which such indemnified party or its Affiliates
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. ATC and each holder of
Registrable Securities agrees that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section. The
amount paid or payable by an indemnified party as a result of the Claims
referred to above in this Section or Section 4 shall include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigation or defending any such action or claim (which shall be
limited as provided in Section 3(c) if the indemnifying party has assumed
the defense of any such action in accordance with the provisions thereof).
The obligations of each Stockholder under this Section 3(d) are several and
not joint.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
Indemnification or, if appropriate, contribution, similar to that
specified in the preceding provisions of this Section (with appropriate
modifications) shall be given by ATC and each seller of Registrable
Securities with respect to any required registration or other
qualification of Registrable Securities under any Applicable Law other than
the Securities Act.
In the event of any underwritten offering of Registrable Securities
under the Securities Act pursuant to the provisions of Section 1, ATC and
each Stockholder on whose behalf Registrable Securities shall have been
registered agree to enter into an underwriting agreement, in standard form,
with the underwriters, which underwriting agreement may contain additional
provisions with respect to indemnification and contribution in lieu of the
provisions of this Section.
4. Exchange Act Registration.
-------------------------
ATC covenants and agrees that, at its expense, until such time as the
Stockholders no longer hold any Registrable Securities:
(a) it will, if required by law, maintain a registration statement
(containing such information and documents as the Commission shall specify)
with respect to the ATC Common Stock under Section 12(b) or 12(g) of the
Exchange Act effective and will file on time such
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information, documents and reports as the Commission may require or
prescribe for companies whose stock has been registered pursuant to said
Section 12(b) or 12(g);
(b) it will, if a registration statement with respect to the ATC
Common Stock under Section 12(b) or Section 12(g) is effective, upon the
request of any Stockholder, make whatever other filings with the Commission
or otherwise make generally available to the public such financial and
other information as any Stockholder may deem necessary or advisable in
order to enable him to be permitted to sell shares of ATC Common Stock
pursuant to the provisions of Rule 144 promulgated under the Securities Act
(or any successor rule or regulation thereto or any statute hereafter
adopted to replace or to establish the exemption that is now covered by
said Rule 144);
(c) it will, if not subject to Section 13 to 15(d) of the Exchange
Act, upon the request of any Significant Stockholder made on or after
December 31, 1998, make publicly available the information specified in
subparagraph (c)(2) of said Rule 144, and will take such further action as
any Stockholder may reasonably request, all to the extent required from
time to time to enable such Stockholder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by said Rule 144 (or any successor rule or regulation
to either thereof or any statute hereafter adopted to replace or to
establish the exemption that is now covered by said Rule 144); and
(d) it will, if not subject to Section 13 to 15(d) of the Exchange
Act, upon the request of any Stockholder agree to furnish to a prospective
purchaser (subject to the execution by it of a confidentiality agreement in
form, scope and substance reasonably satisfactory to ATC) the information
specified in subparagraph (d)(4) of Rule 144A promulgated under the
Securities Act (or any successor rule or regulation thereto or any statute
hereafter adopted to replace or to establish the exemption that is now
covered by said Rule 144A), and will take such further action as any
Stockholder may reasonably request, all to the extent required from time to
time to enable such Stockholder to sell Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by said Rule 144A (or any successor rule or regulation
thereto or any statute hereafter adopted to replace or to establish the
exemption that is now covered by said Rule 144A); and
(e) upon the request of any Stockholder, it will deliver to such
Stockholder a written statement as to whether it has complied with the
requirements of this Section.
ATC represents and warrants that any such registration statement or any
information, documents or report filed with the Commission in connection
therewith or any information so made public shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading. ATC
shall, to the extent permitted by Applicable Law, indemnify and hold harmless
(or to the extent the same is not enforceable, make contribution to) the
Stockholders, their partners, trustees, advisory committee members, officers,
directors, employees, representatives and agents, each broker, dealer or
underwriter (within the meaning of the Securities Act) acting for any
Stockholder in connection with any offering or sale by such Stockholder of
Registrable Securities or any person, firm or corporation controlling (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) such Stockholder or any such broker, dealer or underwriter from and against
any and all Claims arising out of or resulting from any breach of the foregoing
representation or warranty, all on terms
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and conditions comparable to those set forth in Section 3; provided, however,
that ATC shall be given written notice and an opportunity to participate in,
and, to the extent that it may wish, to assume on terms and conditions
comparable to those set forth in Section 3, the defense thereof.
5. Termination of Registration Obligations.
---------------------------------------
The obligations of ATC to any Stockholder with respect to its rights of
registration provided for in Section 1:
(a) shall continue until such time as Sullivan & Worcester LLP, or
other counsel for ATC knowledgeable in securities law matters and
reasonably acceptable to such Stockholder has delivered a written opinion
to ATC and such Stockholder to the effect that either (i) such Stockholder
has no further obligation to comply with the registration requirements of
the Securities Act or to deliver a prospectus meeting the requirements of
Section 10(a)(3) of the Securities Act in connection with further sales by
such Stockholder of Registrable Securities or (ii) such Stockholder is able
to sell all of the Registrable Securities owned by it pursuant to the
provisions of Rule 144 under the Securities Act in a three-month period;
and
(b) shall not apply to any proposed sales or other dispositions or
offers therefor of any Registrable Securities with respect to which
Sullivan & Worcester LLP, or other counsel for ATC knowledgeable in
securities law matters and reasonably acceptable to such Stockholder has
delivered a written opinion to ATC and such Stockholder proposing to make
such offer, sale or other disposition to the effect that such Stockholder
has no obligation to comply with the registration requirements of the
Securities Act or to deliver a prospectus meeting the requirements of
Section 10(a)(3) of the Securities Act.
Any such opinion (a copy of which shall be addressed to such Stockholder)
shall be reasonably satisfactory (in the case of such opinion as to form, scope
and substance) to such Stockholder.
ATC shall, to the extent permitted by Applicable Law, indemnify and hold
harmless each Stockholder, its partners, trustees, advisory committee members,
officers, directors, employees, representatives and agents and each person, if
any, who controls such Stockholder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any Claims to
which such Stockholder, or such partners, trustees, advisory committee members,
officers, directors, employees, representatives and agents or controlling
persons may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Claims arise out of or are based upon the failure to
register the Registrable Securities because of the invocation by ATC of the
provisions of this Section under the Securities Act, all on terms and conditions
comparable to those set forth in Section 3; provided, however, that ATC shall be
given written notice and an opportunity to participate in, and to the extent
that it may wish, to assume, on terms and conditions comparable to those set
forth in Section 3, the defense thereof.
The indemnification and contributions provisions of Sections 3 and 4 and
this Section, and the obligations of each Stockholder pursuant to the provisions
of Section 9, shall survive any termination of ATC's obligations pursuant to
this Section.
6. Registration Rights of Others.
------------------------------
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ATC represents and warrants that it has not previously entered into any
agreement with respect to its securities granting any registration rights to any
Person other than the 1998 Registration Rights Agreement.
7. Mergers, etc.
------------
In addition to any other restrictions on mergers, consolidations and
reorganizations contained in the Restated Certificate of Incorporation, by-laws
or agreements of ATC, ATC covenants and agrees that it shall not, directly or
indirectly, enter into any merger, consolidation, sale of all or substantially
all of its assets or business, liquidation, dissolution or reorganization in
which ATC shall not be the surviving corporation unless the surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in a writing to assume all of the obligations of ATC under this Agreement, and
for that purpose references hereunder to "Registrable Securities" shall be
deemed to include the securities which such holders would be entitled to receive
in exchange for Registrable Securities pursuant to any such merger,
consolidation, sale of all or substantially all of its assets or business,
liquidation, dissolution or reorganization.
8. Annual and Quarterly Reports; Other Information.
-----------------------------------------------
ATC will deliver to each Stockholder so long as such Stockholder holds any
Registrable Securities:
(a) as soon as practicable after the end of each fiscal year and each
quarter, audited annual and unaudited consolidated quarterly financial
statements of ATC, including a consolidated balance sheet, a consolidated
statement of operations, and a consolidated statement of cash flow, for
such year or quarter, all prepared in accordance with generally accepted
accounting principles;
(b) as soon as available, copies of all documents filed with the
Commission; and
(c) such other financial and other information as may, from time to
time, be reasonably requested by any Significant Stockholder.
9. Withdrawals.
-----------
Any Stockholder may at any time withdraw any request made pursuant to
Section 1 for registration of its Registrable Securities. Notwithstanding
anything in the foregoing provisions of this Section to the contrary, the
provisions of this Section shall not be applicable in the event that any such
withdrawal or withdrawals resulting in such termination is or are effected on
account of (a) ATC's failure to disclose any material fact required to be
disclosed in the registration statement or any prospectus relating to such
offering or (b) any material adverse change in ATC, its business, assets or
condition (financial or other).
10. Definitions.
-----------
As used herein, unless the context otherwise requires, the terms (or any
variant in the form thereof) set forth in this Agreement shall have the
respective meanings so set forth. 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 Agreement shall have such meanings when used in each
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agreement, notice, certificate, communication, opinion or other document
executed or required to be executed pursuant hereto or thereto or otherwise
delivered, from time to time, pursuant hereto or thereto.
"Affiliate" of any Person shall mean any Person which, directly or
indirectly, owns or controls, is under common ownership or control with, or is
owned or controlled by, such Person. A Person shall be deemed to be "controlled
by" any other Person if such other Person possesses, directly or indirectly,
power to direct or cause the direction of the management or policies of such
Person or the disposition of its assets or property, whether by stock, equity or
other ownership, contract, arrangement or understanding, or otherwise.
"Agreement" is defined in the first paragraph.
"Applicable Law" shall mean any Law of any Authority, whether domestic or
foreign, including without limitation all federal and state Laws, to which the
Person in question is subject or by which it or any of its business or
operations is subject or any of its property is bound.
"ATC" is defined in the first paragraph.
"Authority" shall mean any governmental or quasi-governmental authority,
whether executive, legislative, judicial, administrative or other, or any
combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or quasi-
governmental agency, arbitrator, board, body, branch, bureau or comparable
agency or Entity, commission, corporation, court, department, instrumentality,
mediator, panel, system or other political unit or subdivision or other Entity
of any of the foregoing, whether domestic or foreign.
"Claims" shall mean, with respect to any Person, any and all debts,
liabilities, obligations, losses, damages, deficiencies, assessments and
penalties of or against such Person, together with all Legal Actions, pending or
threatened, claims and judgments of whatever kind and nature relating thereto,
and all fees, costs, expenses and disbursements (including without limitation
reasonable attorneys' and other legal fees, costs and expenses) relating to any
of the foregoing.
"Common Stock", "Class A Common", "Class B Common" or "Class C Common",
shall mean those respective securities described in the Restated Certificate of
Incorporation of ATC.
"Commission" shall mean the Securities and Exchange Commission or any
successor Authority.
"Excluded Offering" shall mean (a) an offering relating solely to dividend
reinvestment plans or stock option or other employee benefit plans, (b) any
merger, consolidation or acquisition, (c) any exchange or tender offer, whether
with existing security holders of ATC or any other Person, or (d) a firm
underwritten offering relating solely to convertible securities or units
consisting of securities senior to Common Stock and warrants, options and rights
to acquire Common Stock in which the managing underwriters shall have objected
to the inclusion of any Registrable Securities.
"Entity" shall mean any corporation, firm, unincorporated organization,
association, partnership, a trust (inter vivos or testamentary), an estate of a
deceased, insane or incompetent individual, business trust, joint stock company,
joint venture or other organization, entity or business, whether acting in an
individual, fiduciary or other capacity, or any Authority.
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"Event" shall mean the existence or occurrence of any act, action,
activity, circumstances, condition, event, fact, failure to act, omission,
incident or practice, or any set or combination of any of the foregoing.
"Exchange Act" shall mean the Securities Exchange Act of 1934, and the
rules and regulations of the Commission thereunder, all as from time to time in
effect, or any successor law, rules or regulations, and any reference to any
statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
"FCC" shall mean the Federal Communications Commission or any successor
Authority.
"Law" shall mean any (a) administrative, judicial, legislative or other
action, code, consent decree, constitution, decree, directive, enactment,
finding, law, injunction, interpretation, judgment, order, ordinance, policy
statement, proclamation, promulgation, regulation, requirement, rule, rule of
law, rule of public policy, settlement agreement, statute, or writ of any
Authority, domestic or foreign; (b) the common law, or other legal precedent; or
(c) arbitrator's, mediator's or referee's award, decision, finding or
recommendation.
"Legal Action" shall mean, with respect to any Person, any and all
litigation or legal or other actions, arbitrations, counterclaims,
investigations, proceedings, requests for material information by or pursuant to
the order of any Authority or suits, at law or in arbitration, equity or
admiralty, whether or not purported to be brought on behalf of such Person,
affecting such Person or any of such Person's business, property or assets.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ" shall mean the automatic quotation system of NASD.
"Person" shall mean any natural individual or any Entity.
"Prospectus" shall mean each prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including each preliminary prospectus and post-
effective amendments and all material incorporated by reference in such
prospectus.
"Registrable Securities" shall mean (a) all shares of Class A Common Stock
acquired by CSFB pursuant to the ATC Stock Purchase Agreement, and (b) all
shares of Common Stock of whatever series or class or other equity securities of
ATC derived from the Registrable Securities, whether as a result of merger,
consolidation, stock split, stock dividend, stock distribution, stock
combination, recapitalization or similar event.
"Registration Expenses" shall mean all (or where appropriate any one or
more) of the following:
(a) all registration, filing and listing fees;
(b) fees and expenses of compliance with securities or blue sky laws
(including without limitation reasonable fees and disbursements of counsel
for the underwriters or selling holders in connection with blue sky and
state securities qualifications of the Registrable Securities under the
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laws of such jurisdictions as the managing underwriters or the holders of
not less than a majority in value (based on the proposed public offering
price) of the Registrable Securities being sold may designate);
(c) printing (including without limitation expenses of printing or
engraving certificates for the Registrable Securities in a form eligible
for deposit with Depositary Trust Company and otherwise meeting the
requirements of any securities exchange on which they are listed and of
printing Prospectuses), word processing, messenger, telephone and delivery
expenses;
(d) fees and disbursements of counsel for ATC, and reasonable fees
and disbursements of counsel for the underwriters and for the selling
holders of the Registrable Securities in accordance with the provisions of
Section 1(c)(xiv) (subject to any provisions to the contrary in this
Agreement);
(e) fees and disbursements of all independent public accountants of
ATC (including without limitation the expenses of any annual or special
audit and "cold comfort" letters required by the provisions of this
Agreement);
(f) fees and disbursements of underwriters (excluding discounts,
commissions or fees of underwriters), selling brokers, dealer managers or
similar securities industry professionals relating to the distribution of
the Registrable Securities or legal expenses of any Person other than ATC,
the underwriters and the selling holders;
(g) securities act liability insurance if ATC so desires or if the
underwriters or the holders of not less than a majority in value (based on
the proposed public offering price) of the Registrable Securities being
sold so require;
(h) fees and expenses of other Persons, including any experts,
retained by ATC;
(i) fees and expenses incurred in connection with the listing of the
Registrable Securities on each securities exchange on which securities of
the same class are then listed;
(j) fees and expenses associated with any NASD filing required to be
made in connection with any Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained in
accordance with the rules and regulations of the NASD;
(k) all other third party costs and expenses normally associated with
the issuance and sale of newly issued public securities.
"Registration Statement" shall mean any registration statement of ATC which
covers Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments, including post-effective amendments to
such registration statement, and supplements to such Prospectus and all exhibits
and all material incorporated by reference in such registration statement.
"Securities Act" shall mean the Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as from time to time in effect, or
any successor law, rules or regulations, and
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any reference to any statutory or regulatory provision shall be deemed to be a
reference to any successor statutory or regulatory provision.
"Significant Stockholder" shall mean CSFB (regardless of amount owned) or
any other Stockholder, or group of Stockholders acting together, which owns
shares of Common Stock with a market value of not less than $10,000,000;
provided, however, that notwithstanding the foregoing, in the event ATC is, at
the time of any request made pursuant to the provisions of Section 1(b),
eligible to file a Registration Statement on Form S-3 (or any successor form)
with respect to the proposed disposition of the Registrable Securities with
respect to which such request has been made, and such form is acceptable to the
holders making such request, the minimum market value of the Registrable
Securities shall be not less than $5,000,000.
"Stockholders" shall mean CSFB and any persons who hereafter become
assignees pursuant to Section 11(a).
"Subsidiary" shall mean, with respect to any Person, any Entity a majority
of the capital stock ordinarily entitled to vote for the election of directors,
or if no such voting stock is outstanding a majority of the equity interests, of
which is owned directly or indirectly by such Person or any Subsidiary of such
Person.
11. Miscellaneous.
-------------
(a) Assignment; Successors and Assigns. In the event that ATC shall be
----------------------------------
merged with, or consolidated into, any other Entity or in the event that it
shall sell and transfer substantially all of its assets to another Entity, the
terms of this Agreement shall inure to the benefit of, and be assumed by, the
Entity resulting from such merger or consolidation, or to which ATC's assets
shall be sold and transferred. Anything in this Agreement to the contrary
notwithstanding, the term "Stockholders" as used in this Agreement shall be
deemed to include the holders from time to time of any of the Registrable
Securities, whether or not they become parties to this Agreement, except for
holders who have acquired Registrable Securities in connection with an offering
registered under the Securities Act or pursuant to sales made in accordance with
Rule 144 (or any successor rule or regulation or statute in substitution
therefor). The rights to cause ATC to register Registrable Securities pursuant
to Section 1 may be assigned in connection with any transfer or assignment by a
holder of Registrable Securities; provided, however, that (i) such transfer may
otherwise be effected in accordance with applicable securities laws and (ii)
such transfer is effected in compliance with the restrictions on transfer
contained in any agreement between ATC and such holder. ATC's obligations under
this Agreement shall not be assigned, and its duties under this Agreement shall
not be delegated, except as provided in the first sentence of this Section.
Nothing in this Agreement expressed or implied is intended to and shall not be
construed to confer upon or create in any Person (other than the parties hereto
and their permitted successors and assigns) any rights or remedies under or by
reason of this Agreement, including without limitation any rights to enforce
this Agreement.
(b) Specific Performance; Other Rights and Remedies. Each party recognizes
-----------------------------------------------
and agrees that the other parties' remedies at law for any breach of the
provisions of this Agreement would be inadequate and agrees that for breach of
such provisions, each such party shall, in addition to such other remedies as
may be available to it at law or in equity or as provided in this Agreement, be
entitled to injunctive relief and to enforce its rights by an action for
specific performance to the extent permitted by Law. Each party hereby waives
any requirement for security or the posting of any bond or other surety in
connection with any
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temporary or permanent award of injunctive, mandatory or other equitable relief.
Nothing herein contained shall be construed as prohibiting any party from
pursuing any other remedies available to it for such breach or threatened
breach, including without limitation the recovery of damages.
(c) Expenses. CSFB shall pay the expenses incident to the negotiation,
--------
preparation, performance and enforcement of this Agreement (including all fees
and expenses of its and ATC's counsel, accountants and other consultants,
advisors and representatives for all activities of such persons undertaken
pursuant to this Agreement), except to the extent otherwise specifically set
forth in this Agreement.
(d) Entire Agreement. This Agreement constitutes the entire agreement
----------------
among the parties with respect to the subject matter hereof and supersedes all
prior agreements, arrangements, covenants, promises, conditions, understandings,
inducements, representations and negotiations, expressed or implied, oral or
written, among them as to such subject matter.
(e) Waivers; Amendments. Notwithstanding anything in this Agreement to the
-------------------
contrary, amend ments to and modifications of this Agreement may be made,
required consents and approvals may be granted, compliance with any term,
covenant, agreement, condition or other provision set forth herein may be
omitted or waived, either generally or in a particular instance and either
retroactively or prospectively with, but only with, the written consent of ATC
(to the extent it is entitled to the benefit thereof) and (i) with respect to
the rights of the Stockholders set forth in Section 1(b), including without
limitation the definition of Significant Stockholder, two-thirds (2/3) in
interest of the Stockholders, and (ii) with respect to all other rights and
obligations of the Stockholders, a majority in interest of the Stockholders (to
the extent they are entitled to the benefit thereof or obligated thereby);
provided, however, that in the event any such amendment, modification, consent,
approval or waiver shall be for the benefit of or materially adverse to less
than all of the Stockholders, such amendment, modification, consent, approval or
waiver shall require a majority in interest of those Stockholders who are not so
benefitted or who are so materially adversely affected.
(f) 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,
(b) sent by telex, telegram, telecopy or other form of rapid transmission,
confirmed by mailing (by first class or express mail, postage prepaid) 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:
If to American Tower Corporation, at
116 Huntington Avenue
Boston, MA 02116
Attention: Steven B. Dodge, Chairman of the Board and Chief
Executive Officer
Facsimile: (617) 375-7575
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attention: Norman A. Bikales, Esq.
Facsimile: (617) 338-2880
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If to CSFB:
11 Madison Avenue
New York, New York 10010
Attention: Kristin M. Allen, Managing Director
Facsimile: (212) 325-8021
with a copy to:
Sullivan &Cromwell
125 Broad Street
New York, NY 10004
Attention: John T. Bostelman
Facsimile: (212) 558-3588
(g) Severability. If any provision of this Agreement shall be held 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 so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case, except when such reformation and construction
could operate as an undue hardship on either party, or constitute a substantial
deviation from the general intent and purpose of such party as reflected in this
Agreement. The parties shall endeavor in good faith negotiations to replace the
invalid, inoperative, illegal or unenforceable provisions with valid, operative,
legal and enforceable provisions the economic effect of which comes as close as
possible to that of the invalid, inoperative, illegal or unenforceable
provisions.
(h) Counterparts. This Agreement may be executed in several counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument, binding upon all the parties hereto. In
pleading or proving any provision of this Agreement, it shall not be necessary
to produce more than one of such counterparts.
(i) Section Headings. The headings contained in this Agreement are for
----------------
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(j) Governing Law. The validity, interpretation, construction and
-------------
performance of this Agreement shall be governed by the applicable laws of the
United States of America and the domestic
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substantive laws of the State of New York 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.
(k) Further Acts. Each party agrees that at any time, and from time to
------------
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
agreements, assignments, instruments, other documents and assurances, as any
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.
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IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date set forth in the first paragraph hereof.
American Tower Corporation
By:
-------------------------------------
Name: Steven B. Dodge
Title: Chairman of the Board and
Chief Executive Officer
Credit Suisse First Boston Corporation
By:
-------------------------------------
Name:
Title:
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