EXHIBIT 10.1
------------
SBA COMMUNICATIONS CORPORATION
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS AGREEMENT is made as of this 5th day of March, 1997 by and among SBA
Communications Corporation, a Florida Corporation (the "Company"), Steven E.
Bernstein ("Bernstein"), Ronald G. Bizick, II ("Bizick") and Robert M. Grobstein
("Grobstein").
RECITALS:
---------
WHEREAS, the Company has issued to Bernstein Eight Million Seventy-Five
Thousand (8,075,000) shares of its Class B Common Stock, $.01 par value per
share (the "Class B Common Stock") and has granted options (the "Options") to
Messrs. Bizick and Grobstein to purchase shares of its Class A Common Stock
entitling them to purchase Seven Hundred Seventy-Three Thousand Five Hundred
Twenty-Eight (773,528) shares and Three Hundred Eighty-Six Thousand Seven
Hundred Sixty-Four (386,764) shares, respectively; and
WHEREAS, the Company wishes to provide Bernstein, Bizick and Grobstein, and
they desire to have, registration rights with respect to shares of Class A
Common Stock issuable upon conversion of the Class B Common Stock or exercise of
the Options.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall be used in this Agreement with
-----------
the following respective meanings:
"Affiliate" shall mean (a) any Person directly or indirectly controlling,
controlled by or under common control with another Person; (b) any Person owning
or controlling ten percent (10%) or more of the outstanding voting securities of
such other Person; (c) any officer, director or partner of such Person; (d) any
liquidating trust, trustee or other similar Person or entity for any Person; or
(e) in case of an individual, any family member to whom such individual may
transfer his or her shares pursuant to the provisions of the Shareholders
Agreement of even date herewith among the parties hereto and Steven E.
Bernstein.
"Agreement" shall mean this Registration Rights Agreement, as amended from
time to time hereafter.
"Commission" shall mean the Securities and Exchange Commission.
"Class A Common Stock" shall mean and include the Company's Class A Common
Stock, par value $.01 per share, as authorized on the date of this Agreement,
and any other securities into
which or for which the Company's Class A Common Stock is converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission (or of any other federal agency then administering the Exchange Act)
thereunder, all as the same shall be in effect at the time.
"Holder" shall mean Bernstein, Bizick or Grobstein or any other Person who
or which is a holder of Registrable Stock and to whom or to which the rights of
registration hereunder have been transferred or assigned pursuant to the
provisions hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean any natural person, partnership, corporation or other
legal entity.
"Preferred Shareholder" shall mean any Person who purchased Series A
Convertible Preferred Stock, par value $.01 per share, pursuant to the Company's
Confidential Private Memorandum dated February 21, 1997, and their permitted
transferees or assigns.
"Registrable Stock" shall mean (a) all Class A Common Stock issued or
issuable pursuant to the conversion of the Class B Common Stock or exercise of
the Options and (b) any other shares of Class A Common Stock issued in respect
of such shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger or consolidation or
reorganization, provided, however, that shares of Class A Common Stock shall
only be treated as Registrable Stock if and so long as they have not been (i)
sold to or through a broker or dealer or underwriter in a public distribution or
a public securities transaction or (ii) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions and restrictive legends
with respect to such Class A Common Stock are removed upon the consummation of
such sale.
"Registration Statement" shall mean a registration statement filed by the
Company with the Commission for public offering and sale of equity securities of
the Company (other than a registration statement on Form S-8, Form S-4, or any
successor forms thereto, any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation, any other form of registration statement not available for
registering the Registrable Stock or any registration statement relating solely
to employee stock option, stock purchase, benefit or similar plans
(collectively, "Employee Plans")).
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission (or
of any other federal agency then administering the Securities Act) thereunder,
all as the same shall be in effect at the time.
2
"Series A Preferred Shareholders" shall mean those Persons who purchase
shares of Series A Preferred Stock of the Company pursuant to the Stock Purchase
Agreement and who become a party hereto as provided in the Stock Purchase
Agreement.
2. Required Registration.
---------------------
(a) If at any time (a) a Holder or Holders request that the Company
file a registration statement on Form S-3 or any successor form thereto for a
public offering of all or any portion of the shares of Registrable Stock held by
such requesting Holder or Holders, and (b) the Company is a registrant entitled
to use Form S-3 or any successor thereto to register such shares, then the
Company shall use its best efforts to register under the Securities Act on Form
S-3 or any successor thereto, for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Registrable Stock
specified in such notice; provided, however, that (a) the Company shall not be
obligated to effect any registration on Form S-3 pursuant to this Section 2
(whether of Registrable Stock of a Holder or of one or more other Persons) (i)
more frequently than twice every twelve (12) months, or (ii) if such
registration is proposed to be part of a firm commitment underwritten public
offering, unless the underwriters are reasonably acceptable to the Company.
Other than as set forth in this Section 2, there shall be no limitation on the
number of registrations on Form S-3 which may be requested and obtained under
this Section 2.
(b) Notwithstanding anything to the contrary contained herein, the
Company shall not be required to seek to cause a Registration Statement to
become effective pursuant to this Section 2:
(i) within one hundred eighty (180) days after the effective date of a
Registration Statement filed by the Company (other than a registration of
securities solely in connection with an Employee Plan), provided, however, that
the Company shall use its best efforts to achieve effectiveness of a
registration requested hereunder promptly following such one hundred eighty
(180) day period if such request is made during such one hundred eighty (180)
day period;
(ii) if the Company shall furnish to holders a certificate signed by
the President of the Company stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to the Company or its
shareholders for a Registration Statement to be filed in the near future due to
pending Company events, or that it would require disclosure of material non-
public information relating to the Company which, in the reasonable opinion of
the Board of Directors, should not be disclosed, then the Company's obligation
to use all reasonable efforts to register, qualify or comply under this Section
2 shall be deferred for a period not to exceed ninety (90) consecutive days from
the date of receipt of written request from such Holders; provided, however,
that the Company may not utilize this right more than once in any twelve (12)
month period;
(iii) if such registration is proposed to be part of a firm
commitment underwritten public offering, unless the underwriters are reasonably
acceptable to the Company; and
3
(iv) for any Holder requesting such registration who may then dispose
of all of such Holder's Registrable Stock proposed to be so registered pursuant
to Rule 144 promulgated under the Securities Act within the three-month period
following such proposed registration (taking into account all sales of
Registrable Stock which such Holder proposes to sell pursuant to Rule 144 during
such three-month period).
(c) Following receipt of any notice under this Section 2, the Company
shall immediately notify all Holders of Registrable Stock from whom notice has
not been received, and such other Persons to whom the Company is obligated to
provide notice, that such registration is to be effected and shall use its best
efforts to register under the Securities Act, for public sale in accordance with
the method of disposition specified in such notice from requesting Holders, the
number of shares of Registrable Stock specified in such notice (and in all
notices received by the Company from other Holders within thirty (30) days after
the giving of such notice by the Company). If the proposed method of
disposition is an underwriting, the Holders of a majority of the shares of
Registrable Stock to be sold in such offering may designate the managing
underwriter of such offering, who shall be reasonably acceptable to the Company;
provided, however, that the selection by Preferred Shareholders who elect to
participate in such offering of a managing underwriter shall prevail over any
conflicting selection by the Holders.
(d) The Company shall be entitled to include in any Registration
Statement referred to in this Section 2, for sale in accordance with the method
of disposition specified by the requesting Holders, shares of Class A Common
Stock to be sold by the Company for its own account and shares to be sold by any
other shareholder pursuant to incidental registration rights granted to such
shareholders (such as those rights provided in Section 3), except as and to the
extent that, in the opinion of the managing underwriter, if any, such inclusion
of shares by other Shareholders would adversely affect the marketing of the
Registrable Stock to be sold or that such inclusion is otherwise unadvisable.
If, in the good-faith judgment of the managing underwriter of such public
offering, if any, the inclusion of all of the shares of Class A Common Stock
requested for inclusion pursuant to this Section 2 would adversely affect the
successful marketing of the proposed offering or a reduction in the number of
shares of Class A Common Stock to be sold is otherwise advisable, then the
number of shares of Class A Common Stock to be included in the offering shall be
reduced to the required level, first, pro rata by excluding shares to be sold by
all Holders of Registrable Stock and any other Persons to whom registration
rights are granted by the Company ("Other Persons") based upon the number of
shares of Registrable Stock then held by such Other Persons eligible for
inclusion in such registration (unless otherwise agreed by the Company and such
Other Persons) and then, second, by excluding shares to be sold by Preferred
Shareholders. Except for Registration Statements on Form S-8, Form S-4, any
successor forms thereto, any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation, any other form of registration statement not available for
registering the Registrable Stock or any registration statement relating solely
to Employee Plans, the Company will not cause any other Registration Statement
with respect to its Class A Common Stock for its own account to become effective
less than ninety (90) days after the effective date of any registration
requested pursuant to this Section 2.
4
(e) Whenever a requested registration is for an underwritten offering,
only shares which are to be included in the underwriting may be included in the
registration unless the managing underwriter consents otherwise.
3. Incidental Registration. Each time the Company shall determine to
-----------------------
file a Registration Statement in connection with the proposed offer and sale for
money of any its equity securities by it or any of its security holders, the
Company will give written notice of its determination to all Holders. Upon the
written request of a Holder given within thirty (30) days after the giving of
any such notice by the Company, the Company will use its best efforts to cause
all such shares of Registrable Stock, the Holders of which have so requested
registration thereof, to be included in such Registration Statement, all to the
extent requisite to permit the sale or other disposition by the prospective
seller or sellers of the Registrable Stock. If the Registration Statement is to
cover, in whole or in part, an underwritten distribution, the Company shall use
its best efforts to cause the Registrable Stock requested for inclusion pursuant
to this Section 3 to be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters. In
the event of any such underwritten distribution pursuant to this Section 3, the
number of shares of Registrable Stock of the Holders may be reduced if and to
the extent that the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the securities to be sold by
the Company or another shareholder of the Company therein or that such reduction
is otherwise advisable; provided, however, that any such reduction shall be
accomplished first pro rata by excluding shares to be sold by all Holders of
Registrable Stock and any other Persons to whom registration rights are granted
by the Company ("Other Persons") based upon the number of shares of Registrable
Stock then held by such Other Persons eligible for inclusion in such
registration (unless otherwise agreed by the Company and such Other Persons) and
then, second, by excluding shares to be sold by Preferred Shareholders.
Notwithstanding the foregoing provisions, the Company may withdraw any
Registration Statement referred to in this Section 3 without thereby incurring
any liability to holders of shares of Registrable Stock. In addition, whenever
a registration pursuant to this Section 3 is for an underwritten offering, only
shares which are to be included in the underwriting may be included in the
registration unless the managing underwriter consents otherwise.
4. Registration Procedures. If and whenever the Company is required by
-----------------------
the provisions of Section 2 or 3 hereof to effect the registration of shares of
Registrable Stock under the Securities Act, the Company will at its expense, as
expeditiously as possible:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, (i) prepare and file with the Commission a
Registration Statement with respect to such securities and use its best efforts
to cause such Registration Statement to become and remain effective for the
period of the distribution contemplated thereby (determined as hereinafter
provided), (ii) prepare and file with the Commission such amendments to such
Registration Statement and supplements to the prospectus contained therein as
may be necessary to keep such Registration Statement effective and such
Registration Statement and prospectus contained therein accurate and complete
for the period of the distribution contemplated thereby (determined as
hereinafter
5
provided), and (iii) comply with the provisions of the Securities Act with
respect to the distribution of all shares of Registrable Stock covered by such
Registration Statement in accordance with the sellers' intended method of
distribution set forth in such Registration Statement for such period;
(b) If the offering is to be underwritten in whole or in part, enter
into a written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter of the public offering, the Company and
the Holders participating in such offering;
(c) Furnish to the participating Holders and to the underwriters such
reasonable number of copies of the Registration Statement, preliminary
prospectus, final prospectus and such other documents as such underwriters and
participating Holders may reasonably request in order to facilitate the public
offering of such securities;
(d) Use its best efforts to register or qualify the securities covered
by such Registration Statement under such state securities or blue sky laws of
such jurisdictions (i) as shall be reasonably appropriate for distribution of
the securities covered by such Registration Statement and (ii) as such
participating Holders or, in the case of an underwritten public offering, the
managing underwriter, may reasonably request within twenty (20) days following
the original filing of such Registration Statement, except that the Company
shall not for any purpose be required to execute a general consent to service of
process, to qualify to do business as a foreign corporation in any jurisdiction
where it is not so qualified or to subject itself to taxation in such
jurisdiction;
(e) Promptly notify such participating Holders and each underwriter
under the Registration Statement, at any time when a prospectus relating to such
securities is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
any such prospectus or any other prospectus as then in effect would include 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 not misleading;
(f) During the time period during which the Company is required,
pursuant to Section 4(a), to cause a Registration Statement to be effective, in
case any of such participating Holders or any underwriter for any such Holders
is required to deliver a prospectus at a time when the prospectus then in
circulation is not in compliance with the Securities Act or the rules and
regulations of the Commission, prepare promptly upon request such amendments or
supplements to such Registration Statement and such prospectus as may be
necessary in order for such prospectus to comply with the requirements of the
Securities Act and such rules and regulations;
(g) Advise such participating Holders promptly after it shall receive
notice or obtain knowledge thereof of the issuance of any stop order by the
Commission or any state securities commissions or agency suspending the
effectiveness of such Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued;
6
(h) Use its best efforts to ensure the obtaining of all necessary
approvals from the NASD; and
(i) Cause the Registrable Stock registered pursuant to the terms of
this Agreement to be listed with Nasdaq or on a securities exchange (which shall
be the same as where similar securities of the Company are listed, if the
Company has listed securities at the time of such registration).
As used herein, the "period of distribution" of Registrable Stock in a firm
commitment underwritten public offering shall be deemed to extend until the
first to occur of (A) each underwriter completing the distribution of all
securities purchased by it or (B) ninety (90) days after the effective date of
the Registration Statement, and the "period of distribution" of Registrable
Stock in any other registration shall be deemed to extend until the earlier of
(i) the sale of all Registrable Stock covered thereby and (ii) ninety (90) days
after the effective date of the Registration Statement, if on Form S-1, S-2 or
SB-2 (or any such form of registration statement subsequently adopted as a
successor to such Form S-1, S-2 or SB-2) and one hundred eighty (180) days after
the effective date of the Registration Statement, if on Form S-3 (or any such
form of registration statement subsequently adopted as a successor to such Form
S-3).
In connection with each registration hereunder, the Holders of Registrable
Stock will furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary in order to ensure compliance with federal and applicable state
securities laws.
5. Expenses.
--------
(a) With respect to each registration effected pursuant to Section 2
or 3 hereof, all fees, costs and expenses of and incidental to such registration
and the public offering in connection therewith shall be borne by the Company;
provided, however, that (i) security holders participating in any such
registration shall bear their pro rata share of the underwriting discounts and
selling commissions and (ii) any such fee, cost or expense which does not
constitute a normal fee, cost or expense of such registration and which is
attributable solely to a particular security holder participating in any such
registration shall be borne by that holder.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of counsel for
the underwriter or underwriters of such securities (if and only if the Company
and/or selling security holders are otherwise required to bear such fees and
disbursements), all legal fees and disbursements and other expenses of complying
with state securities or blue sky laws of any jurisdictions in which the
securities to be offered are to be registered or qualified, reasonable fees and
disbursements of one counsel for the selling security holders and the premiums
7
and other costs of policies of insurance insuring the Company against liability
arising out of such public offering.
6. Indemnification and Contribution.
--------------------------------
(a) In the event of a registration of any shares of Registrable Stock
pursuant to Section 2 or 3, the Company will indemnify and hold harmless each
Holder of such shares of Registrable Stock included in a Registration Statement
pursuant to the provisions of this Agreement and any underwriter (as defined in
the Securities Act) of such Registrable Stock and any person who controls such
Holder or such underwriter within the meaning of the Securities Act, and each of
their successors from and against, and will reimburse such Holder and each such
underwriter and controlling person with respect to, any and all claims, actions,
demands, losses, damages, liabilities, cost and expenses to which such Holder or
any such underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such claims, actions, demands, losses,
damages, liabilities, costs or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such Registration Statement, any prospectus contained therein or any amendment
or supplement thereto, 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 not misleading or arise out of any
violation by the Company of any rule or regulation under the Securities Act or
any state securities laws applicable to the Company and relating to action or
inaction required of the Company in connection with such regulation; provided,
however, that the Company will not be liable in any such case to the extent, but
only to the extent, that any such claim, action, demand, loss, damage,
liability, cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in strict conformity with information furnished by such Holder, such
underwriter or such controlling person in writing specifically for use in the
preparation thereof; provided, further, that the foregoing indemnity agreement
is subject to the condition that, insofar as it relates to any such untrue
statement (or alleged untrue statement) or omission (or alleged omission) made
in the preliminary prospectus but eliminated or remedied in the Final
Prospectus, such indemnity agreement shall not inure to the benefit of any
underwriter or any Holder or controlling person of such Holder or indemnitee if
there is no underwriter or if such underwriter or Holder failed to deliver a
copy of the Final Prospectus to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is required
by the Securities Act; and provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence obligations.
(b) Each Holder of shares of Registrable Stock, severally and not
jointly, which shares are included in a registration pursuant to the provisions
of this Agreement, will indemnify and hold harmless the Company, each person, if
any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the Registration Statement, each director of
the Company, each underwriter and any person who controls the underwriter and
each of their successors from and against, and will reimburse the Company and
such officer, director, underwriter or controlling person with respect to, any
and all claims, actions, demands, losses, damages, liabilities, costs or
expenses to which the Company or such officer, director, underwriter or
8
controlling person may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, 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 in which they are made, not misleading;
provided, however, that such Holder will be liable in any such case to the
extent, but only to the extent, that any such claim, action, demand, loss,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in strict conformity with written information furnished by
such Holder specifically for use in the preparation thereof; provided, however,
that the liability of each Holder hereunder shall be limited to the proportion
of any such claim, action, demand, loss, damage, liability, cost or expense
which is equal to the proportion that the public offering price of the shares
of Registrable Stock sold by such Holder under such Registration Statement bears
to the total offering price of all securities sold thereunder, but not, in any
event, to exceed the proceeds received by such Holder from the sale of shares of
Registrable Stock covered by the Registration Statement; provided, further, that
the foregoing indemnity agreement is subject to the condition that, insofar as
it related to any such untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in the preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the Commission at the time
the Registration Statement becomes effective or in the amended prospectus on
file with the Commission pursuant to Rule 424(b) (the "Final Prospectus"), such
indemnity agreement shall not inure to the benefit of any indemnitee if a copy
of the Final Prospectus was not furnished to the person or entity asserting the
loss, liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act; and provided, further, that this indemnity shall
not be deemed to relieve any underwriter of any of its due diligence
obligations.
(c) Promptly after receipt by a party to be indemnified pursuant to
the provisions of paragraph (a) or (b) of this Section 6 (an "indemnified
party") of notice of the commencement of any action involving the subject matter
of the foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the provisions
of paragraph (a) or (b) of this Section 6, notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 6 and shall not relieve the indemnifying party
from liability under this Section 6 unless such indemnifying party is prejudiced
by such omission. In case such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right 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 of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of such paragraph (a) and (b) of this Section 6 for any legal expense
subsequently incurred by such indemnified party in connection with the defense
thereof other than
9
reasonable costs of investigation; provided that, if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it that are different from or additional to those
available to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate counsel
and to assume such legal defenses and otherwise to participate in the defense of
such action, with the expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred. No indemnifying party shall be liable to an indemnified party
for any settlement of any action or claim without the consent of the
indemnifying party and no indemnifying party may unreasonable withhold its
consent to any such settlement. No indemnifying party will, except with the
consent of the indemnified party, 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 or litigation.
(d) In order to provide for just and equitable contributions to joint
liability under the Securities Act in any case in which either (i) any Holder
exercising rights under this Agreement, or any controlling person of any such
Holder, makes a claim for indemnification pursuant to this Section 6 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 6 provides for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
part of any such selling Holder or any such controlling person in circumstances
for which indemnification is provided under this Section 6, then, and in each
such case, the Company and such Holder will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the Holder of Registrable Stock on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Holder of Registrable Stock on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Holder of
Registrable Stock on the other, and each party's relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission; provided, however, that in any such case, (A) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation and (B) no such Holder
will be required to contribute any amount in excess of the proceeds received by
such Holder from the sales of Registrable Stock covered by the Registration
Statement.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection
10
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.
7. Reporting Requirements Under Securities Exchange Act of 1934. When it
------------------------------------------------------------
is first legally required to do so, the Company shall register its Class A
Common Stock under Section 12 of the Exchange Act and shall keep effective such
registration and shall timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 of the Exchange Act.
From and after the effective date of the first Registration Statement filed by
the Company, the Company shall (whether or not it shall then be required to do
so) timely file such information, documents and reports as the Commission may
require or prescribe under Section 13 or 15(d) (whichever is applicable) of the
Exchange Act. Immediately upon becoming subject to the reporting requirements
of either Section 13 or 15(d) of the Exchange Act, the Company shall forthwith
upon request furnish any Holder of Registrable Stock (a) a written statement by
the Company that it has complied with such reporting requirements, (b) a copy of
the most recent annual or quarterly report of the Company, and (c) such other
reports and documents filed by the Company with the Commission as such Holder
may reasonably request in availing itself of an exemption for the sale of
Registrable Stock without registration under the Securities Act. The Company
acknowledges and agrees that the purposes of the requirements contained in this
Section 7 are (i) to enable any such Holder to comply with the current public
information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar or successor exemptive provision),
and (ii) to qualify the Company for the use of Registration Statements on Form
S-3. In addition, the Company shall take such other measures and file such
other information, documents and reports as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar or successor exemptive provision hereafter in effect) and
the use of Form S-3. The Company also covenants to use its best efforts, to the
extent that it is reasonably within its power to do so, to qualify for the use
of Form S-3. From and after the effective date of the first Registration
Statement filed by the Company, the Company agrees to use its reasonable best
efforts to facilitate and expedite transfers of Registrable Stock pursuant to
Rule 144 under the Securities Act (or any similar or successor exemptive
provision hereafter in effect), which efforts shall include timely notice to its
transfer agent to expedite such transfers of Registrable Stock.
8. Shareholder Information. The Company may require each Holder of
-----------------------
Registrable Stock as to which any registration is to be effected pursuant to
this Agreement to furnish the Company in a timely manner such information with
respect to such Holder and the distribution of such Registrable Stock as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
9. Restrictions on Offerings. Upon written request from the Company and
-------------------------
its underwriters, each Holder agrees, for himself, herself and/or itself and any
Affiliates or other transferees of his, her or its Registrable Stock, not to,
directly or indirectly, offer, sell, pledge, contract to sell, grant any option
to purchase, grant a security interest in, hypothecate or otherwise
11
sell or dispose of any Registrable Stock or other equity securities of the
Company (including, without limitation, equity securities that may be deemed to
be beneficially owned by the Holder in accordance with the rules and regulations
of the Commission and equity securities that may be issued upon the exercise of
a stock option or warrant) or any securities convertible into, derivative of or
exercisable or exchangeable for any rights to purchase or acquire equity
securities of the Company, whether now owned or hereafter acquired during the
period commencing on the date of the underwriting agreement signed in connection
with the Company's initial public offering and ending on the close of business
on the one hundred and eightieth (180th) day after the date of the Company's
Final Prospectus relating to such initial public offering, and for up to 90 days
in connection with subsequent registrations, if any, or for such longer period
as may be required by any regulatory agency. The restriction contained in this
Section 9 shall not apply (i) to sales of any Registrable Stock or other
securities sold by a Holder in such public offering (to the extent such Person
is entitled or permitted to do so) and (ii) unless each executive officer and
director of the Company and any employee holding five percent (5%) or more of
the outstanding Common Stock has agreed to the same restriction.
10. Specific Enforcement. All of the parties hereto acknowledge that the
--------------------
parties will be irreparably damaged in the event that this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants or conditions of this Agreement by any of the parties hereto, the
other parties shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage, or a
decree for specific performance, in accordance with the provisions hereof.
11. Notices. Any notice required or permitted to be given hereunder shall
-------
be in writing and shall be deemed to be properly given when sent by registered
or certified mail, return receipt requested, by Federal Express or other
guaranteed overnight delivery service or by facsimile transmission, addressed as
follows:
If to the Company: SBA Communications Corporation
6001 Broken Sound Parkway
Suite 400
Boca Raton, FL 33487
Attention: President
If to the Holders: Steven E. Bernstein
5246 Princeton Way
Boca Raton, FL 33496
Ronald G. Bizick, II
822 Rambling Drive Circle
West Palm Beach, FL 33414
12
Robert M. Grobstein
18949 Treble Lane
Boca Raton, FL 33498
and if to any other Holder at such Holder's address for notice as set forth in
the register maintained by the Company or, as to any of the foregoing, to such
other address as any such party may give the others notice of pursuant to this
Section 11, provided, however, that a change of address shall only be effective
-----------------
upon receipt.
12. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of Florida, without giving effect to any
conflict or choice of law provisions.
13. Waivers; Amendments. No waiver of any right hereunder by any party
-------------------
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law.
14. Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the respective legal representatives, successors
and assigns of the parties hereto; provided, however, that the registration
rights conferred herein on the Holders shall only inure to the benefit of a
transferee of shares of Class B Common Stock, Class A Common Stock or the
Options if:
(a) such transferee (other than a transferee that is already a Holder)
delivers to the Company a written instrument by which such transferee identifies
itself, given the Company notice of such rights, indicates the shares of
Registrable Stock owned by it and agrees to be bound by the obligations imposed
upon it hereunder (any such transfer shall not be effective unless and until the
Company shall have received such written instrument); and
(b) any transfer to a subsequent transferee or a transferee also
complies with the provisions of this Section 14.
15. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Headings. Headings in this Agreement are included for reference only
--------
and shall have no effect upon the construction or interpretation of any part of
this Agreement.
17. Severability. If any provision of this Agreement shall be held to be
------------
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of
13
this Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
a fully authorized signatory, and each Holder has caused this Agreement to be
executed by such individual Holder or by a duly authorized signatory, as of the
date first written above.
ATTEST: SBA COMMUNICATIONS CORPORATION
/s/ Robert M. Grobstein /s/ Steven E. Bernstein
_____________________________ By:________________________________
Secretary Steven E. Bernstein, President
/s/ Steven E. Bernstein
___________________________________
Steven E. Bernstein
/s/ Ronald G. Bizick, II
___________________________________
Ronald G. Bizick, II
/s/ Robert M. Grobstein
___________________________________
Robert M. Grobstein
246201.03
14