EXHIBIT 1.1
AMERICAN TOWER CORPORATION
Debt Securities, Preferred Stock, Depositary Shares
Class A Common Stock and Warrants
UNDERWRITING AGREEMENT
1. Introductory. American Tower Corporation, a Delaware corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities, preferred stock, depositary shares, Class A Common
Stock ("Common Stock") and warrants and certain stockholders of the Company
("Selling Stockholders") may sell Common Stock registered under the registration
statements referred to in Section 2(a) (collectively, "Registered Securities").
The Registered Securities constituting senior debt securities will be issued
under the Indenture identified in the Terms Agreement referred to in Section 3
("Senior Indenture"), in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices and other
terms. The Registered Securities constituting subordinated debt securities will
be issued under the Indenture identified in the Terms Agreement referred to in
Section 3 (the "Subordinated Indenture", and together with the Senior Indenture,
the "Indentures" or, each, an "Indenture"), in one or more series, which series
may vary as to interest rates, maturities, redemption provisions, selling prices
and other terms. The Registered Securities constituting preferred stock may be
issued in one or more series, which series may vary as to dividend rates,
redemption provisions, selling prices and other terms. The Registered Securities
constituting depositary shares will be issued by the Depositary identified in
the Terms Agreement referred to in Section 3 (the "Depositary") under the
deposit agreement identified in the Terms Agreement referred to in Section 3
("Deposit Agreement"), in one or more series, each representing an interest in
shares of the Company's preferred stock. The Registered Securities constituting
warrants will be issued under a warrant agreement identified in the Terms
Agreement referred to in Section 3 ("Warrant Agreement"), between the Company
and the Warrant Agent identified in the Terms Agreement referred to in Section 3
(the "Warrant Agent"), in one or more series, which series may vary as to
securities or other property purchasable, expiration dates, exercise dates,
selling prices, exercise prices and other terms. Particular series or offerings
of Registered Securities will be sold pursuant to a Terms Agreement referred to
in Section 3, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities"; provided, however, that if the Terms
Agreement provides for an over-allotment option ("Over-Allotment Option"), then
the Registered Securities involved in any such offering and to be purchased by
the Underwriters are hereinafter referred to as the "Firm Offered Securities"
and any Registered Securities involved in any such offering which may be
purchased pursuant to the Over-Allotment Option are hereinafter referred to as
the "Optional Offered Securities"; provided, further, however, that the Firm
Offered Securities and the Optional Offered Securities are herein collectively
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(d) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
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Subsidiaries of the Company have entered into a Credit Agreement, dated
as of January 6, 2000, among ATC Teleports, Inc., American Towers, Inc. and
American Tower L.P., respectively, and Toronto Dominion (Texas) Inc. as
Administrative Agent, and the other lenders under such agreement (as heretofore
amended, the "Credit Agreement").
2. Representations and Warranties of the Company and the Selling
Stockholders, if any. (a) The Company, as of the date of each Terms Agreement
referred to in Section 3, represents and warrants to, and agrees with, each
Underwriter that:
(i) A registration statement (No. 333-37988), relating to the
Registered Securities to be issued and sold by the Company (the
"Company Registration Statement"), and, if so indicated in the Terms
Agreement, a registration statement, relating to the Registered
Securities to be sold by the Selling Stockholders, if any (the "Selling
Stockholder Registration Statement"), including a prospectus, which
relates to the Registered Securities under the Company Registration
Statement and the Registered Securities under the Selling Stockholder
Registration Statement pursuant to Rule 429 under the Securities Act of
1933 ("Act"), have been filed with the Securities and Exchange
Commission ("Commission") and have become effective. The Company
Registration Statement, as amended at the time of any Terms Agreement
referred to in Section 3, and the Selling Stockholder Registration
Statement, as may be amended at the time of any Terms Agreement
referred to in Section 3, are hereinafter collectively referred to as
the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities (if they are debt
securities, preferred stock, depositary shares or warrants) and the
terms of the offering of the Offered Securities, as first filed with
the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act, including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(ii) On the effective date of the registration statements
relating to the Registered Securities, such registration statements
conformed, to the extent applicable in the case of the Selling
Stockholder Registration Statement, in all respects to the requirements
of the Act, the Trust Indenture Act of 1939 ("Trust Indenture Act") and
the rules and regulations of the Commission ("Rules and Regulations")
and did not include any 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, and on the date of each
Terms Agreement referred to in Section 3, the Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and the Registration Statement will not include any 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 and the Prospectus will not include any 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 the light of the circumstances under which they were made,
not misleading, except that the foregoing does not apply to statements
in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
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(iv) Each subsidiary of the Company has been duly incorporated
(or formed, as the case may be) and is an existing corporation (or
limited partnership or limited liability company, as the case may be)
in good standing under the laws of the jurisdiction of its
incorporation or formation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
failure so to qualify and be in good standing would not, individually
or in the aggregate, have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole ("Material Adverse
Effect"); all of the issued and outstanding capital stock (or
partnership or other equity interests) of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and, except for any general partnership interest, nonassessable; and,
except for the pledge pursuant to the Credit Agreement, the capital
stock (or partnership or other equity interests) of each subsidiary
owned by the Company, directly or through subsidiaries, is owned free
from liens, encumbrances and defects.
(v) If the Offered Securities are debt securities: the
applicable Indenture has been duly authorized by the Company and has
been duly qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized; and when the Offered Securities
are delivered and paid for pursuant to the Terms Agreement on the
Closing Date (as defined below) or pursuant to Delayed Delivery
Contracts (as hereinafter defined), such Indenture will have been duly
executed and delivered by the Company and, assuming due authorization,
execution and delivery of the Indenture and authentication of the
Offered Securities by the applicable trustee identified in the Terms
Agreement (the "Trustee"), such Offered Securities will have been duly
executed, issued and delivered by the Company and will conform to the
description thereof contained in the Prospectus and such Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(vi) If the Offered Securities are preferred stock: the
Offered Securities have been duly authorized and, when the Offered
Securities have been delivered and paid for in accordance with the
Terms Agreement on the Closing Date, such Offered Securities will have
been validly issued, fully paid and nonassessable and will conform to
the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities.
(vii) If the Offered Securities are depositary shares: the
Deposit Agreement has been duly authorized by the Company; the Offered
Securities and the shares of the Company's preferred stock represented
by the Offered Securities have been duly authorized and, when the
Offered Securities have been delivered and paid for in accordance with
the Terms Agreement on the Closing Date, the Offered Securities will
have been validly issued and delivered and such shares of the Company's
preferred stock will have been validly issued, fully paid and
nonassessable and each will conform to the description thereof
contained in the Prospectus; when the Offered Securities are delivered
and paid for pursuant to the Terms Agreement on the Closing Date (as
defined below) or pursuant to Delayed Delivery Contracts, the Deposit
Agreement will have been duly executed and delivered by the Company;
the deposit by the Company of the shares of the Company's preferred
stock represented by the Offered Securities in accordance with the
Deposit Agreement has been duly authorized by the Company and, assuming
due authorization, execution and delivery of the Deposit Agreement by
the Depositary, each Offered Security will represent a legal and valid
fractional interest in shares of the Company's preferred stock as
described in the Prospectus; assuming due execution and delivery of the
depositary receipts evidencing the Offered Securities by the Depositary
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pursuant to the Deposit Agreement, such depositary receipts will
entitle the holders thereof to the benefits provided therein and in the
Deposit Agreement; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities or the shares
of the Company's preferred stock represented thereby.
(viii) If the Offered Securities are warrants: the Warrant
Agreement has been duly authorized by the Company; the Offered
Securities and the securities for which the Offered Securities are
exercisable ("Warrant Securities") have been duly authorized
(including, in the case of Warrant Securities constituting depositary
shares, the shares of the Company's preferred stock represented by such
depositary shares); when the Offered Securities are delivered and paid
for pursuant to the Terms Agreement on the Closing Date or pursuant to
Delayed Delivery Contracts, the Warrant Agreement will have been duly
executed and delivered by the Company, such Offered Securities will
have been duly executed, authenticated, issued and delivered (as the
case may be) by the Company and will conform to the description thereof
contained in the Prospectus and the Warrant Agreement and such Offered
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and upon exercise
of the Offered Securities in accordance with the terms of the Warrant
Agreement and assuming due authorization, execution and delivery of the
Warrant Agreement by the Warrant Agent, (i) in the case of Warrant
Securities constituting debt securities, the applicable Indenture will
have been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery of the Indenture and
authentication of the Offered Securities by the Trustee, such Warrant
Securities will have been duly authorized, executed, issued and
delivered by the Company and will conform to the description thereof
contained in the Prospectus and such Indenture and such Warrant
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; (ii) in the case of
Warrant Securities constituting of preferred stock, the Warrant
Securities will have been validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus, and the stockholders of the Company will have no preemptive
rights with respect to the Warrant Securities; (iii) in the case of
Warrant Securities constituting depositary shares, (A) the Warrant
Securities will have been validly issued and delivered and the shares
of the Company's preferred stock represented by such Warrant Securities
will have been validly issued, fully paid and nonassessable and each
will conform to the description thereof contained in the Prospectus,
(B) the Deposit Agreement will have been duly authorized, executed and
delivered by the Company and the deposit by the Company of the shares
of the Company's preferred stock represented by the Warrant Securities
in accordance with the Deposit Agreement will have been duly authorized
by the Company, (C) assuming due authorization, execution and delivery
of the Deposit Agreement by the Depositary, each Warrant Security will
represent a legal and valid fractional interest in shares of the
Company's preferred stock as described in the Prospectus, and (D)
assuming due execution and delivery of the depositary receipts
evidencing the Warrant Securities by the Depositary pursuant to the
Deposit Agreement, such depositary receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit Agreement,
and the stockholders of the Company will have no preemptive rights with
respect to the Warrant Securities or the shares of the Company's
preferred stock represented thereby; and (iv) in the case of Warrant
Securities constituting Common Stock, the Warrant Securities and all
outstanding shares of capital stock of the Company will have been duly
authorized, validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus, and the
stockholders of the Company have no preemptive rights with respect to
the Warrant Securities.
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(ix) If the Offered Securities are Common Stock: the Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital
stock of the Company (including the Offered Securities, if any, being
sold by any Selling Stockholders) are, and, when the Offered Securities
have been delivered and paid for in accordance with the Terms Agreement
on the Closing Date, such Offered Securities will have been, validly
issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the Offered
Securities.
(x) If the Offered Securities are convertible into Common
Stock: when the Offered Securities are delivered and paid for pursuant
to the Terms Agreement on the Closing Date, such Offered Securities
will be convertible into Common Stock of the Company in accordance with
their terms (if the Offered Securities are preferred stock) or the
applicable Indenture (if the Offered Securities are debt securities);
the shares of Common Stock initially issuable upon conversion of such
Offered Securities have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion, will be
validly issued, fully paid and nonassessable; the outstanding shares of
Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock.
(xi) If the Offered Securities are Common Stock or warrants to
purchase Common Stock or are convertible into Common Stock: there are
no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Offered Securities.
(xii) If the Offered Securities are Common Stock or warrants
to purchase Common Stock or are convertible into Common Stock: except
as disclosed in the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under
the Act with respect to any outstanding securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(xiii) If the Offered Securities constitute Common Stock or
are warrants to purchase Common Stock or are convertible into Common
Stock: the outstanding shares of Common Stock are listed on the New
York Stock Exchange (the "Stock Exchange") and the Offered Securities
(if the Offered Securities are Common Stock) or the Common Stock for
which the Offered Securities are exercisable (if the Offered Securities
are warrants to purchase Common Stock) or the Common Stock into which
the Offered Securities are convertible (if they are convertible) have
been approved for listing on the Stock Exchange, subject to notice of
issuance. If the Offered Securities are debt securities, preferred
stock, depositary shares or warrants, they have been approved for
listing on the stock exchange, if any, indicated in the Terms
Agreement, subject to notice of issuance.
(xiv) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement), the applicable
Indenture (if the Offered Securities are debt securities), the Deposit
Agreement (if the Offered Securities are depositary shares) or the
Warrant Agreement (if the Offered Securities are warrants) in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made
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under the Act and, if the Offered Securities are debt securities, the
Trust Indenture Act and such as may be required under state securities
laws.
(xv) The execution, delivery and performance of the applicable
Indenture (if the Offered Securities are debt securities), the Deposit
Agreement (if the Offered Securities are depositary shares), the
Warrant Agreement (if the Offered Securities are warrants), the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance and sale of the Offered Securities
and, if the Offered Securities are debt securities, preferred stock,
depositary shares or warrants, compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, the Credit
Agreement, or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws (or other
constituent document) of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement).
(xvi) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities,
preferred stock, depositary shares or warrants, any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company.
(xvii) Except as disclosed in the Prospectus and except as
would not have a Material Adverse Effect, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would have a Material
Adverse Effect.
(xviii) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that might have a Material Adverse Effect.
(xix) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xx) Neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
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(xxi) There are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of
their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the applicable Indenture (if the Offered Securities are debt
securities), the Deposit Agreement (if the Offered Securities are
depositary shares), the Warrant Agreement (if the Offered Securities
are warrants), the Terms Agreement (including the provisions of this
Agreement) or any Delayed Delivery Contracts or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xxii) The financial statements included or incorporated by
reference in the Registration Statement and Prospectus present fairly
the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and such financial statements have been prepared
in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; any schedules included in
the Registration Statement present fairly the information required to
be stated therein; and if pro forma financial statements are included
in the Registration Statement and Prospectus: the assumptions used in
preparing the pro forma financial statements included in the
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(xxiii) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole, and there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xxiv) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder, if any, as of the date of each Terms
Agreement referred to in Section 3, severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has valid and unencumbered title
to the Offered Securities to be delivered by such Selling Stockholder
and full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Offered Securities to be
delivered by such Selling Stockholder on the Closing Date; and upon the
delivery of and payment for the Offered Securities on such Closing
Date, the several Underwriters will acquire valid and unencumbered
title to the Offered Securities to be delivered by such Selling
Stockholder.
(ii) All information furnished, or to be furnished, in writing
to the Company by such Selling Stockholder regarding the Selling
Stockholder specifically for use in the Registration Statement is as of
the date of any Terms Agreement, and will be on the Closing Date, true
and correct in all material respects and does not on the date of the
Terms Agreement, and will not on the Closing
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Date, contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) The execution and delivery by such Selling Stockholder
of, and the performance by such Selling Stockholder of its obligations
under this Agreement, the Custody Agreement hereinafter referred to and
the Power of Attorney appointing certain individuals as such Selling
Stockholder's attorneys-in-fact to the extent set forth therein (the
"Power of Attorney") will not result in a breach or violation of any of
the terms or provisions of, or constitute a default under, the
certificate of incorporation or bylaws or agreement of limited
partnership or other constituent document of such Selling Stockholder
(if such Selling Stockholder is a corporation or limited partnership or
other entity) or any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over such
Selling Stockholder or any of its properties, or any agreement or
instrument to which such Selling Stockholder is a party or by which it
is bound or to which any of its properties is subject, or the
constituent documents, if any, of such Selling Stockholder.
(iv) No consent, approval, authorization, order or waiver of,
or filing with, any governmental agency or body or any court is
required to be obtained or made by such Selling Stockholder for the
sale of the Offered Securities to be sold by such Selling Stockholder
or the performance by such Selling Stockholder of its obligations under
the Terms Agreement or the Power of Attorney or Custody Agreement of
such Selling Stockholder, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(v) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by or on
behalf of such Selling Stockholder and the Power of Attorney and the
Custody Agreement have been duly authorized, executed and delivered by
such Selling Stockholder and are its valid and binding agreements
(subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles).
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications, which may be in the form
of Annex I, II or III or in such other form as the parties may agree ("Terms
Agreement") at the time the Company and the Selling Stockholders, if any,
determine to sell the Offered Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount or number of Offered
Securities to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters, the name of each Selling Stockholder, if any, the number of
shares to be sold by each Selling Stockholder, if any, and (if the Offered
Securities are debt securities, preferred stock, depositary shares or warrants)
the terms of the Offered Securities not already specified (in the applicable
Indenture, in the case of Offered Securities that are debt securities, in the
Deposit Agreement, in the case of Offered Securities that are depositary shares,
or in the Warrant Agreement, in the case of Offered Securities that are
warrants), including, but not limited to, interest rate (if debt securities or
debt warrants), dividend rate (if preferred stock, preferred stock warrants or
depositary shares), maturity (if debt securities or debt warrants), any
redemption provisions and any sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts. The Terms Agreement will specify any other details of the
terms of offering that should be reflected in the prospectus supplement relating
to the offering of the Offered Securities.
On the basis of the representations, warranties and agreements set
forth in the Terms Agreement (including the provisions of this Agreement), but
subject to the terms and conditions set forth in the Terms
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Agreement (including the provisions of this Agreement), the Company and each
Selling Stockholder, if any, will agree, severally and not jointly, to sell to
each Underwriter, and each Underwriter will agree, severally and not jointly, to
purchase from the Company and each Selling Stockholder, if any, at the purchase
price specified in the Terms Agreement, that number of Offered Securities (or
Firm Offered Securities if there is an Over-Allotment Option) specified or
determined in accordance with the provisions of the Terms Agreement. In
addition, if the Terms Agreement provides for an Over-Allotment Option, upon
written notice from the Lead Underwriter (as defined below) given to the Company
from time to time not more than thirty days subsequent to the date of the Terms
Agreement, the Underwriters may, severally and not jointly, purchase all or less
than all of the Optional Offered Securities, and the Company and the Selling
Stockholders, if any, will agree, severally and not jointly, to sell to the
Underwriters, at the purchase price per share to be paid for the Firm Offered
Securities, that number of Optional Offered Securities specified or determined
in accordance with the provisions of the Terms Agreement; provided, however,
that the Over-Allotment Option may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by Lead Underwriter to the Company.
The Company and the Selling Stockholders, if any, or the Custodian (as
defined below), if there is a custody arrangement with the Selling Stockholders,
will deliver the Offered Securities (or Firm Offered Securities if there is an
Over-Allotment Option) to the Representatives for the accounts of the
Underwriters, against payment of the purchase price in Federal (same day) Funds
by wire transfer in U.S. Dollars to an account at a bank acceptable to the Lead
Underwriter drawn to the order of the Company, in the case of the Offered
Securities (or Firm Offered Securities if there is an Over-Allotment Option)
sold by the Company, and to the Selling Stockholders, if any, or the Custodian,
if there is a custody arrangement with the Selling Stockholders, in the case of
the Offered Securities (or Firm Offered Securities if there is an Over-Allotment
Option) sold by the Selling Stockholders, at the place of delivery and payment
specified in the Terms Agreement and at the time and date of delivery and
payment specified in the Terms Agreement (such time and date, or such other time
not later than seven full business days thereafter as the Underwriter first
named in the Terms Agreement (the "Lead Underwriter") and the Company agree as
the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date" or "First Closing Date" if the Terms Agreement
provides for an Over-Allotment Option). For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934 (the "Exchange Act"), the Closing Date (or First
Closing Date if there is an Over-Allotment Option) (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities (or Firm Offered Securities if
there is an Over-Allotment Option) sold pursuant to the offering, other than
Contract Securities (as defined below) for which payment of funds and delivery
of securities shall be as hereinafter provided. It is understood that the
Underwriters propose to offer the Offered Securities for sale as set forth in
the Prospectus.
If the Terms Agreement provides for an Over-Allotment Option, each time
for the delivery of and payment for the Optional Offered Securities, being
herein referred to as an "Optional Closing Date", which may be the First Closing
Date (the First Closing Date and each Optional Closing Date, if any, being
sometimes referred to as a "Closing Date"), shall be determined by the Lead
Underwriter but shall not be later than seven full business days after written
notice of election to purchase Optional Offered Securities is given. The Company
and the Selling Stockholders, if any, will deliver the Optional Offered
Securities being purchased on each Optional Closing Date to the Representatives
for the accounts of the Underwriters, against payment of the purchase price
therefor in Federal (same day) Funds by wire transfer in U.S. Dollars to an
account at a bank acceptable to the Lead Underwriter drawn to the order of the
Company, in the case of the Optional Offered Securities sold by the Company, and
to the Selling Stockholders, if any, or the Custodian, if there is a custody
arrangement with the Selling Stockholders, in the case of the Optional Offered
Securities sold by the Selling Stockholders, at the place of delivery and
payment specified in the Terms Agreement.
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If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex IV attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount (if debt securities) or number of shares (if
preferred stock, Common Stock or depositary shares) or warrants (if warrants) of
Offered Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts. If the Company
executes and delivers Delayed Delivery Contracts, the Contract Securities will
be deducted from the Offered Securities to be purchased by the several
Underwriters and the aggregate principal amount (if debt securities) or number
of shares (if preferred stock, Common Stock or depositary shares) or warrants
(if warrants) to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount (if debt securities) or number of shares (if
preferred stock, Common Stock or depositary shares) or warrants (if warrants)
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Lead Underwriter determines that such reduction shall be
otherwise than pro rata and so advises the Company. The Company will advise the
Lead Underwriter not later than the business day prior to the Closing Date of
the principal amount (if debt securities) or number of shares (if preferred
stock, Common Stock or depositary shares) or warrants (if warrants) constituting
Contract Securities.
If the Offered Securities are Common Stock, there are Selling
Stockholders and there is a custody arrangement with the Selling Stockholders,
as of the date of each Terms Agreement, certificates in negotiable form for any
Common Stock of the Company to be sold by such Selling Stockholders shall be
placed in custody, for delivery under the Terms Agreement, under custody
agreements (the "Custody Agreements") made with custodian identified in the
Terms Agreement (the "Custodian"). Each Selling Stockholder agrees that the
shares represented by the certificates held in custody for the Selling
Stockholders under the Custody Agreements are subject to the interests of the
Underwriters, that the arrangements made by the Selling Stockholders for such
custody are to that extent irrevocable except as provided therein and in the
Power of Attorney of such Selling Stockholder, and that the obligations of the
Selling Stockholders under any Terms Agreement shall not be terminated by
operation of law, whether by the death of any individual Selling Stockholder or
the occurrence of any other event, or in the case of a trust, by the death of
any trustee or trustees or the termination of such trust, or in the case of a
corporation or partnership or other entity, by the dissolution or liquidation of
such corporation or partnership or other entity, or the occurrence of any other
event. If any individual Selling Stockholder or any such trustee or trustees
should die, or if any such corporation or partnership should be dissolved or
liquidated or if any other such event should occur, or if any of such trusts
should terminate, before the delivery of the Offered Securities under any Terms
Agreement, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of the Terms Agreement and
the Custody Agreements as if such death, dissolution, liquidation or other event
or termination had not occurred, regardless of whether or not the Custodian
shall have received notice of such death, dissolution, liquidation or other
event or termination.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "Global Securities") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the
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Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account previously designated by the Company at a bank acceptable
to the Lead Underwriter, in each case drawn to the order of the Company at the
place of payment specified in the Terms Agreement on the Closing Date, against
delivery to the applicable Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities.
4. Certain Agreements of the Company and the Selling Stockholders, if
any. The Company agrees with the several Underwriters and the Selling
Stockholders, if any, that it will furnish to counsel for the Underwriters, one
signed copy of the Company Registration Statement and the Selling Stockholder
Registration Statement, each relating to the Registered Securities, including
all exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and delivery
of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplement without the
Lead Underwriter's consent. The Company will also advise the Lead
Underwriter promptly of the filing of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement or of any part thereof and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
respective effective date of the registration statements relating to
the Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement
and, so long as delivery of a Prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, the Prospectus and all amendments
and supplements to such documents, in each case as soon as available
and in such
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quantities as the Lead Underwriter reasonably requests. The Company
will pay the expenses of printing and distributing to the Underwriters
all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and (if the Offered Securities are debt
securities, preferred stock, depositary shares or warrants) the
determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter designates and will continue
such qualifications in effect so long as required for the distribution;
provided, that the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
or to subject itself to taxation generally in any jurisdiction.
(g) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the Lead
Underwriter may reasonably request.
(h) The Company and each Selling Stockholder, if any, will pay
all expenses incidental to the performance of their obligations under
the Terms Agreement (including the provisions of this Agreement), the
Indentures, the Deposit Agreement and the Warrant Agreement, including
(i) the fees and expenses of the Trustees, Depositary, Warrant Agent,
registrar and transfer agent of the Common Stock and their professional
advisers; (ii) payment or reimbursement of the Underwriters (to the
extent incurred by them) for any filing fees or other expenses
(including fees and disbursements of counsel) incurred in connection
with qualification of the Registered Securities for sale (if the
Offered Securities are debt securities, preferred stock, depositary
shares or warrants (other than warrants to purchase Common Stock)), any
determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter may designate and the
printing of memoranda relating thereto; (iii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities, the preparation and
printing of the Terms Agreement (including this Agreement), the
Indentures, the Deposit Agreement, the Warrant Agreement, the
Registration Statement and amendments and supplements thereto, and any
other document relating to the issuance, offer, sale and delivery of
the Offered Securities; (iv) the cost of qualifying the Offered
Securities, to the extent applicable, for trading on the New York Stock
Exchange or other national securities exchange and any expenses
incidental thereto; (v) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (vi)
any fees charged by investment rating agencies for the rating of the
Offered Securities (if they are debt securities, preferred stock,
depositary shares or warrants (other than warrants to purchase Common
Stock)); (vii) any applicable filing fee incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with, the review by the National Association of Securities
Dealers, Inc. of the Registered Securities; (viii) any travel expenses
of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of Registered Securities; and (ix) expenses
incurred in distributing the Prospectus, any preliminary prospectuses,
any preliminary prospectus supplements or any other
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<PAGE>
amendments or supplements to the Prospectus to the Underwriters;
provided, however, the Selling Stockholders, if any, shall be
responsible for the payment of any transfer taxes on the sale by such
Selling Stockholders of the Offered Securities to the Underwriters.
(i) If the Offered Securities are debt securities, preferred
stock, depositary shares or warrants (other than warrants to purchase
Common Stock), the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to any
indebtedness issued or guaranteed by the Company (if the Offered
Securities are debt securities or warrants to purchase debt securities)
or any series of preferred stock or depositary shares representing
preferred stock issued or guaranteed by the Company (if the Offered
Securities are preferred stock, depositary shares or warrants to
purchase preferred stock or depositary shares), or publicly disclose
the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Lead Underwriter for a
period beginning at the time of execution of the Terms Agreement and
ending the number of days after the Closing Date specified under
"Blackout" in the Terms Agreement (the "Blackout Period").
(j) If the Offered Securities are Common Stock or warrants to
purchase Common Stock or are convertible into Common Stock, the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any shares of its Common Stock or
any other capital stock of the Company or any other securities
convertible into or exchangeable or exercisable for any shares of its
Common Stock, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of the Lead Underwriter for the Blackout Period, except for any
such offer, sale, contract to sell, pledge or other disposition of (i)
securities issued or delivered upon conversion, exchange or exercise of
any other securities of the Company outstanding on the date of, or to
be issued pursuant to, the Terms Agreement, (ii) capital stock of the
Company issued pursuant to benefit or other incentive plans maintained
for its officers, directors, consultants or employees or (iii)
securities issued in connection with mergers, acquisitions or similar
transaction. The Company also will deliver to the Underwriters, prior
to the date of the Terms Agreement, "lock-up agreements" of the
directors, officers and certain stockholders of the Company also
agreeing not to make any such offer, sale, contract to sell or
disposition, for the Blackout Period on such terms as the Company and
the Lead Underwriter shall have agreed.
(k) If the Offered Securities are Common Stock and there are
Selling Stockholders, each Selling Stockholder agrees to execute and
deliver to the Underwriters an agreement substantially to the effect
set forth in subsection 4(j) hereof in form and substance satisfactory
to the Underwriters.
(l) If the Offered Securities are Common Stock and there are
Selling Stockholders, each Selling Stockholder agrees to deliver to the
Lead Underwriter on or prior to the Closing Date a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities (or
Firm Offered Securities if there is an Over-Allotment Option) on the Closing
Date (or First Closing Date if there is an Over-Allotment Option) and the
Optional Offered Securities, if any, on any Optional Closing Date, if any, will
be subject to the accuracy of the representations and warranties on the part of
the Company and the Selling Stockholders, if any, herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders, if any, of their
obligations hereunder and to the following additional conditions precedent:
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(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder, and stating in
effect that:
(i) in their opinion the financial statements and any
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included or
incorporated by reference in the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, included or incorporated by reference in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than five business
days prior to the date of the such letter, there was
any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included or incorporated by reference in the
Prospectus; or
(C) for the period from the closing date of
the latest income statement included or incorporated
by reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the latest income statement included or
incorporated by reference in the Prospectus, in
consolidated net revenues, operating cash flow (as
that term is defined in the financial statements
examined by them) or in other income and expense,
net, or in the total or (if the Offered Securities
are Common Stock or are convertible into or
exercisable for Common Stock) per share amounts of
consolidated net income before extraordinary items or
net income or (if the Offered Securities are or are
exercisable for debt securities) in the ratio of
earnings to fixed charges or (if the Offered
Securities are or are exercisable for preferred stock
or depositary shares) in the ratio of earnings to
fixed charges and preferred stock dividends combined;
and
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(D) the pro forma financial data set forth
or incorporated by reference in the Prospectus does
not comply in form in all material respects to the
applicable accounting requirements of the Act and the
related Rules and Regulations or the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of that data;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained or incorporated by reference
in the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) On or prior to the date of the Terms Agreement, the
Representatives shall have received letters, dated the date of delivery
thereof, of each other firm of independent public accountants (the
"Other Auditors") that have examined any financial statements of other
businesses included or incorporated by reference in the Prospectus, in
each case confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder, and stating, to the extent applicable, in
effect that:
(i) in their opinion the financial statements and any
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included or
incorporated by reference in the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the company for which they performed
the procedures specified in this subsection (each an "Audited
Company"), inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if
any, included or incorporated by reference in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such
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unaudited financial statements and summary of
earnings for them to be in conformity with generally
accepted accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than five business
days prior to the date of the such letter, there was
any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the
Audited Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included or incorporated by reference in the
Prospectus; or
(C) for the period from the closing date of
the latest income statement included or incorporated
by reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the latest income statement included or
incorporated by reference in the Prospectus, in
consolidated net revenues, operating income or in
other income and expense, net, or in the total or (if
the Offered Securities are Common Stock or are
convertible into or exercisable for Common Stock) per
share amounts of consolidated net income before
extraordinary items or net income or (if the Offered
Securities are or are exercisable for debt
securities) in the ratio of earnings to fixed charges
or (if the Offered Securities are or are exercisable
for preferred stock) in the ratio of earnings to
fixed charges and preferred stock dividends combined;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained or incorporated by reference
in the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Audited
Company and its subsidiaries subject to the internal controls
of the Audited Company's accounting system or are derived
directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(c) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company, each Selling Stockholder, if any, or any
Underwriter, shall be contemplated by the Commission.
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(d) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities, preferred stock or depositary shares of the
Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities, preferred stock or depositary
shares of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated
the Closing Date, of Sullivan & Worcester LLP, counsel for the Company,
stating to the effect that:
(i) Each of the Company and its subsidiaries listed
on Annex V hereto has been duly incorporated (or formed, as
the case may be) and each of the Company and its subsidiaries
is an existing corporation (or limited partnership or limited
liability company, as the case may be) in good standing under
the laws of the jurisdiction of its incorporation, with
corporate, partnership or limited liability company power and
authority to own its properties and conduct its business as
described in the Offering Document; and is duly qualified to
do business as a foreign corporation (or other entity) in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified
would not individually have a Material Adverse Effect;
(ii) If the Offered Securities are debt securities:
the applicable Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized by the Company; the Offered Securities other than
any Contract Securities have been duly executed,
authenticated, issued and delivered by the Company; assuming
due authorization, execution and delivery of the Indenture and
authentication of the Offered Securities by the Trustee, such
Indenture and the Offered Securities other than any Contract
Securities constitute, and any Contract Securities, when
executed, issued and delivered in the manner provided in such
Indenture and sold pursuant to Delayed Delivery Contracts,
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and the Offered Securities other than any Contract
Securities conform, and any Contract Securities, when so
issued and delivered and sold will conform, to the description
thereof contained in the Prospectus;
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(iii) If the Offered Securities are preferred stock:
the Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been
validly issued and are fully paid and nonassessable; any
Contract Securities, when issued, delivered and sold pursuant
to Delayed Delivery Contracts, will be validly issued, fully
paid and nonassessable; and the Offered Securities other than
any Contract Securities conform, and any Contract Securities,
when so issued, delivered and sold, will conform, to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(iv) If the Offered Securities are depositary shares:
the Deposit Agreement has been duly authorized, executed and
delivered by the Company; the Offered Securities and the
shares of the Company's preferred stock represented by the
Offered Securities have been duly authorized by the Company;
the Offered Securities other than any Contract Securities have
been validly issued and delivered and such shares of the
Company's preferred stock have been validly issued, fully paid
and nonassessable; any Contract Securities when issued,
delivered and sold pursuant to Delayed Delivery Contracts,
will be validly issued and delivered and such shares of the
Company's preferred stock represented by the Contract
Securities will be validly issued, fully paid and
nonassessable; the Offered Securities other than the Contract
Securities conform, and any Contract Securities when so
issued, delivered and sold, will conform, to the description
thereof contained in the Prospectus; the deposit by the
Company of the shares of the Company's preferred stock
represented by the Offered Securities in accordance with the
Deposit Agreement has been duly authorized; each Offered
Security represents a legal and valid fractional interest in
shares of the Company's preferred stock as described in the
Prospectus; the depositary receipts evidencing the Offered
Securities entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement; and the
stockholders of the Company have no preemptive rights with
respect to the Offered Securities or the shares of the
Company's preferred stock represented thereby.
(v) If the Offered Securities are warrants: the
Warrant Agreement has been duly authorized, executed and
delivered by the Company; the Offered Securities and the
Warrant Securities have been duly authorized (including, in
the case of Warrant Securities constituting depositary shares,
the shares of the Company's preferred stock represented by
such depositary shares); the Offered Securities other than any
Contract Securities have been duly executed, authenticated,
issued and delivered (as the case may be); any Contract
Securities, when issued, delivered and sold pursuant to
Delayed Delivery Contracts, will be duly executed,
authenticated, issued and delivered (as the case may be); the
Offered Securities other than the Contract Securities conform,
and any Contract Securities when so issued, delivered and sold
will conform, to the description thereof contained in the
Prospectus; the Warrant Agreement and the Offered Securities
other than the Contract Securities constitute, and the
Contract Securities when executed, authenticated, issued and
delivered (as the case may be) in the manner provided in the
Warrant Agreement and sold pursuant to Delayed Delivery
Contracts will constitute, valid and legally binding
obligations of the Company enforceable with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and assuming due authorization,
execution and delivery of the Warrant Agreement by the Warrant
Agent, (a) in the case of Warrant Securities constituting debt
securities, the applicable Indenture have been duly
authorized, executed and delivered, such Warrant Securities
have been duly authorized, executed, issued and delivered by
the Company and will conform to the description thereof
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<PAGE>
contained in the Prospectus and, assuming due authorization,
execution and delivery of the Indenture and authentication of
the Offered Securities by the Trustee, such Indenture and such
Warrant Securities constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; (b) in the case of
Warrant Securities constituting preferred stock, the Warrant
Securities have been validly issued, fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus, and the stockholders of the Company have no
preemptive rights with respect to the Warrant Securities; (c)
in the case of Warrant Securities constituting depositary
shares, (i) the Warrant Securities have been validly issued
and delivered and the shares of the Company's preferred stock
represented by such Warrant Securities have been validly
issued, fully paid and nonassessable and each conforms to the
description thereof contained in the Prospectus, (ii) the
Deposit Agreement has been duly authorized, executed and
delivered by the Company and the deposit by the Company of the
shares of the Company's preferred stock represented by the
Warrant Securities in accordance with the Deposit Agreement
has been duly authorized by the Company, (iii) each Warrant
Security represents a legal and valid fractional interest in
shares of the Company's preferred stock as described in the
Prospectus, and (iv) the Warrant Securities entitle the
holders thereof to the benefits provided therein and in the
Deposit Agreement, and the stockholders of the Company have no
preemptive rights with respect to the Warrant Securities or
the shares of the Company's preferred stock represented
thereby; and (d) in the case of Warrant Securities
constituting Common Stock, the Warrant Securities and all
outstanding shares of capital stock of the Company have been
duly authorized, validly issued, fully paid and nonassessable
and conform to the description thereof contained in the
Prospectus, and the stockholders of the Company have no
preemptive rights with respect to the Warrant Securities.
(vi) If the Offered Securities are Common Stock: the
Offered Securities and all other outstanding shares of the
Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(vii) If the Offered Securities are convertible: the
Offered Securities other than any Contract Securities are, and
any Contract Securities, when (if the Offered Securities are
debt securities) executed, authenticated, issued and delivered
in the manner provided in the applicable Indenture and sold
pursuant to Delayed Delivery Contracts or (if the Offered
Securities are preferred stock) when issued, delivered and
sold pursuant to Delayed Delivery Contracts, will be
convertible into Common Stock of the Company in accordance
with (if they are debt securities) such Indenture or (if they
are preferred stock) their terms; the shares of Common Stock
initially issuable upon conversion of the Offered Securities
have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be
validly issued, fully paid and nonassessable; the outstanding
shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Common Stock;
(viii) If the Offered Securities are Common Stock or
are warrants to purchase Common Stock or are convertible into
Common Stock: except as disclosed in the
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<PAGE>
Prospectus, there are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act;
(ix) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement), the applicable Indenture (if the Offered
Securities are debt securities), the Deposit Agreement (if the
Offered Securities are depositary shares) or the Warrant
Agreement (if the Offered Securities are warrants) in
connection with the issuance or sale of the Offered Securities
by the Company, except such counsel need not express any
opinion as to (x) such as may be required by the
Communications Act of 1934, as amended (the "Communications
Act") or the rules, regulations or orders of the Federal
Communications Commission ("FCC") promulgated thereunder or
any comparable state or local laws, rules, regulations or
orders or (y) such as may be required by the Blue Sky laws of
the several states of the United States;
(x) The execution, delivery and performance by the
Company of the applicable Indenture (if the Offered Securities
are debt securities), the Deposit Agreement (if the Offered
Securities are depositary shares), the Warrant Agreement (if
the Offered Securities are warrants), the Terms Agreement
(including the provisions of this Agreement) and, if the
Offered Securities are debt securities, preferred stock,
depositary shares or warrants, any Delayed Delivery Contracts
and the issuance and sale of the Offered Securities and, if
the Offered Securities are debt securities, preferred stock,
depositary shares or warrants, compliance with the terms and
provisions thereof will not result in a breach or violation of
any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or, to such counsel's knowledge, any
agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound including, but not limited to, the Credit
Agreement, or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of
the Company or any such subsidiary, except that such counsel
need not express any opinion with respect to the
Communications Act or the rules, regulations or orders of the
FCC promulgated thereunder or any comparable state or local
laws, rules, regulations or orders, and the Company has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement);
(xi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the registration statements relating to the
Registered Securities, as of their respective effective dates,
the Registration Statement and the Prospectus, as of the date
of the Terms Agreement, and any amendment or supplement
thereto, as of its date, complied as to form in all material
respects with the requirements of
20
<PAGE>
the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statements, as of their respective effective
dates, the Registration Statement, as of the date of the Terms
Agreement or as of the Closing Date, or any amendment thereto,
as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as
of the date of the Terms Agreement or as of such Closing Date,
or any amendment or supplement thereto, as of its date or as
of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings and contracts and
other documents are accurate in all material respects and
fairly present the information required to be shown; and such
counsel do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or schedules or
other financial data contained in the Registration Statement
or the Prospectus, or with respect to the Communications Act
or the rules, regulations and orders of the FCC promulgated
thereunder or any comparable state or local laws, rules,
regulations or orders; and
(xii) The Terms Agreement (including the provisions
of this Agreement) and, if the Offered Securities are debt
securities, preferred stock, depositary shares or warrants,
any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(f) The Representatives shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass
upon such matters.
(g) The Representatives shall have received a certificate,
dated the Closing Date, of the Chief Executive Officer of the Company
and the Chief Financial Officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in or
incorporated by reference in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(h) The Representatives shall have received letters, dated the
Closing Date, of Deloitte & Touche LLP and the Other Auditors, which
meet the requirements of subsections (a) and (b) of this
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<PAGE>
Section, respectively, except that the specified date referred to in
such subsection will be a date not more than five days prior to the
Closing Date for the purposes of this subsection.
(i) The Representatives shall have received an opinion, dated
the Closing Date, of Michael Milsom, Esq., Vice President of the
Company and Vice President and General Counsel of ATC Teleports, Inc.,
stating to the effect that:
(i) No consent, approval, authorization, order or
waiver of, or filing with, the FCC under the Communications
Act, and the published policies, rules and regulations of the
FCC or any comparable state or local laws, rules, regulations
or orders is required to be obtained or made for the
consummation of the transactions contemplated by the Indenture
(if the Offered Securities are debt securities), the Deposit
Agreement (if the Offered Securities are depositary shares),
the Warrant Agreement (if the Offered Securities are warrants)
and the Terms Agreement (including the provisions of this
Agreement) in connection with the sale of the Offered
Securities where the failure to obtain such consent, approval,
authorization, order or waiver or to make such filing would
have a Material Adverse Effect;
(ii) The execution, delivery and performance of the
Indenture (if the Offered Securities are debt securities), the
Deposit Agreement (if the Offered Securities are depositary
shares), the Warrant Agreement (if the Offered Securities are
warrants) and the Terms Agreement (including the provisions of
this Agreement) and the consummation of the transactions
therein contemplated will not result in a breach or violation
of any of the terms or provisions of, or constitute a default
under the Communications Act or any FCC regulation, rule,
published policy or order or any comparable state or local
laws, rules, regulations or orders that would have a Material
Adverse Effect; and
(iii) To the knowledge of such counsel, there are no
administrative or judicial proceedings pending before, or
threatened by, the FCC with respect to the Company or any
subsidiary of the Company, or any towers owned or operated by
the Company or any subsidiary of the Company that, if
determined adversely, could reasonably be expected to have a
Material Adverse Effect.
(j) If the Offered Securities are Common Stock and there are
Selling Stockholders, the Representatives shall have received an
opinion, dated the Closing Date, of the counsel for the Selling
Stockholders, to the effect that:
(i) Each Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by such
Selling Stockholder on such Closing Date and had full right,
power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by such Selling Stockholder on
such Closing Date; and the several Underwriters have acquired
valid and unencumbered title to the Offered Securities
purchased by them from the Selling Stockholders on such
Closing Date;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by any Selling Stockholder
for the consummation of the transactions contemplated by the
Custody Agreements or the Terms Agreement (including the
provisions of this Agreement) in connection with the sale of
the Offered Securities sold by the Selling
22
<PAGE>
Stockholders, except such as have been obtained and made under
the Act and such as may be required under state securities
laws;
(iii) The execution, delivery and performance of the
Custody Agreement and the Terms Agreement (including the
provisions of this Agreement) and the consummation of the
transactions therein contemplated will not result in a breach
or violation of any of the terms or provisions of, or
constitute a default under, the certificate of incorporation
or bylaws or agreement of limited partnership or other
constituent document of such Selling Stockholder (if such
Selling Stockholder is a corporation or limited partnership or
other entity) or any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over any Selling Stockholder or any of their
properties or any agreement or instrument to which any Selling
Stockholder is a party or by which any Selling stockholder is
bound or to which any of the properties of any Selling
Stockholder is subject, or the constituent documents, if any,
of such Selling Stockholder;
(iv) The Power of Attorney and related Custody
Agreement with respect to each Selling Stockholder has been
duly authorized, executed and delivered by such Selling
Stockholder and constitute valid and legally binding
obligations of each such Selling Stockholder enforceable in
accordance with their terms subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditor's rights and to general equity principles; and
(v) The Terms Agreement (including the provisions of
this Agreement) has been duly authorized, executed and
delivered by each Selling Stockholder.
The Company and Selling Stockholders, if any, will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably request. The Lead Underwriter may in its sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters under this Agreement and the Terms
Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, 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, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement. The foregoing indemnity agreement with respect
to any untrue statement or omission in the Preliminary Prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person at or prior to
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<PAGE>
the written confirmation of the sale of the Offered Securities to such person,
and the Prospectus (as amended and supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
(b) If the Offered Securities are Common Stock and there are Selling
Stockholders, each Selling Stockholder severally and not jointly, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, 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, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein; provided, further, that a Selling
Stockholder shall only be subject to such liability to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Selling Stockholder specifically for use therein. The
foregoing indemnity agreement with respect to any untrue statement or omission
in the Preliminary Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person at or prior to the written confirmation of the sale of the Offered
Securities to such person, and the Prospectus (as amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities. In no event, however, shall the liability of any Selling
Stockholder for indemnification under this Section 6(b) exceed the lesser of (i)
the proceeds received by such Selling Stockholder from the Underwriters in the
Offering and (ii) that portion of the total losses, claims, damages and
liabilities for which the Underwriters and any controlling persons may be
subject to indemnification hereunder equal to the ratio of the total number of
Offered Securities sold hereunder by such Selling Stockholder as compared to the
total Offered Securities sold hereunder by all Selling Stockholders.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder, if any, against any losses,
claims, damages or liabilities to which the Company or such Selling Stockholder
or may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company and
such Selling Stockholder in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
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<PAGE>
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under, to
the extent applicable, subsection (a), (b) or (c) above, notify the 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 under, to the extent applicable, subsection
(a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying 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 under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under, to the extent
applicable, subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in, to the extent
applicable, subsection (a), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders, if any, on the one hand and the Underwriters on the other
from the offering of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders,
if any, on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders, if any, on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholders, if any, bear to
the total underwriting discounts and commissions received by the Underwriters.
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 Company, the Selling Stockholders, if any, or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
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(f) The obligations of the Company and the Selling Stockholders, if
any, under this Section shall be in addition to any liability which the Company
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities on the Closing Date (or
First Closing date if there is an Over-Allotment Option) or any Optional Closing
Date, if any, under the Terms Agreement and the aggregate principal amount (if
debt securities) or number of shares (if preferred stock, Common Stock or
depositary shares) or warrants (if warrants) of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount (if debt securities) or number of
shares (if preferred stock, Common Stock or depositary shares) or warrants (if
warrants) of Offered Securities, the Lead Underwriter may make arrangements
satisfactory to the Company and the Selling Stockholders, if any, for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under the Terms Agreement (including the provisions of
this Agreement), to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount (if debt securities) or number of
shares (if preferred stock, Common Stock or depositary shares) or warrants (if
warrants) of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total principal amount (if debt securities) or number
of shares (if preferred stock, Common Stock or depositary shares) or warrants
(if warrants) of Offered Securities and arrangements satisfactory to the Lead
Underwriter, the Company and the Selling Stockholders, if any, for the purchase
of such Offered Securities by other persons are not made within 36 hours after
such default, the Terms Agreement will terminate without liability on the part
of any non-defaulting Underwriter, the Company or the Selling Stockholders, if
any, except as provided in Section 8 (provided that in the event there is an
Over-Allotment Option, if such default occurs with respect to Optional Offered
Securities after the First Closing Date, the Terms Agreement will not terminate
as to the Firm Offered Securities or any Optional Offered Securities purchased
prior to such termination). As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. If
the Offered Securities are debt securities, preferred stock or warrants, the
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amount (if debt securities)
or number of shares (if preferred stock, Common Stock or depositary shares) or
warrants (if warrants) of the Offered Securities set forth opposite their names
in the Terms Agreement as a result of Delayed Delivery Contracts entered into by
the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, if any, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to the Terms Agreement (including the
provisions of this Agreement) will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Selling Stockholders, if any, the Company or any
of their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
the Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company, the Selling
Stockholders, if any, and the Underwriters pursuant to Section 6 shall remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of the
Terms Agreement pursuant to Section 7 or the occurrence of any event specified
26
<PAGE>
in clause (iii), (iv) or (v) of Section 5(d), the Company and the Selling
Stockholders, if any, will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 116 Huntington Avenue, Boston, MA 02116,
Attention: Chief Executive Officer or, if sent to the Selling Stockholders, if
any, will be mailed, delivered or telegraphed and confirmed to them at their
address furnished to the Company in writing for the purpose of communications
hereunder.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company, the
Selling Stockholders, if any, and such Underwriters as are identified in the
Terms Agreement and their respective personal representatives and successors and
the officers and directors and controlling persons referred to in Section 6, and
no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters. The Selling Stockholders
will be represented by the representatives identified in the Terms Agreement
(the "Selling Stockholder Representatives") in connection with the transactions
described in the Terms Agreement, and any action under such Terms Agreement
(including the provisions of this Agreement) taken by any of them will be
binding upon all the Selling Stockholders.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
27
<PAGE>
ANNEX I
AMERICAN TOWER CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
________ __, 20__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement[s] on Form S-3 (No. 333-37988[; No.
333-________]) ("Underwriting Agreement"), the following securities ("Offered
Securities") on the following terms:
Title: [ %] [Floating Rate]--[Subordinated]--Notes--Debentures--Bonds
--Due .
Principal Amount: $ .
Over-Allotment Option: [Yes] [No]
[Over-Allotment Option Percentage:]
Interest: [ % per annum, from , 20__, payable semiannually
on and , commencing , 20__, to holders of record
on the preceding or , as the case may be.] [Zero coupon.]
28
<PAGE>
Maturity: , 20__.
Optional Redemption:
Sinking Fund:
Trustee:
Indenture: Indenture, dated as of [_______ __], 2000, between the
Company and the above-named Trustee.
Listing: [None.] [New York Stock Exchange.] [The Nasdaq Stock Market
Inc.'s National Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
, 20__. Underwriters' fee is % of the principal amount of the
Contract Securities.]
Purchase Price: % of principal amount, plus accrued interest
[, if any,] from , 20__.
Expected Reoffering Price: % of principal amount, subject to change
by the [Representative[s] [Underwriters].
Closing: A.M. on , 20__, at ,
in Federal (same day) funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry Only
via DTC. The Offered Securities [will] [will not] trade in DTC's Same Day Funds
Settlement System.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom
of the prospectus supplement cover page concerning the terms of the
offering by the Underwriters, the legend concerning over-allotments--and--,
--stabilizing [and passive market making] on the inside front cover page of
the prospectus supplement--and--, --the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the
prospectus supplement [If paragraph regarding passive market making is
included, insert--and the information contained in the paragraph under the
caption "Underwriting" in the prospectus supplement] [If applicable,
insert--; and (ii) the following information in the prospectus supplement
furnished on behalf of [insert name of Underwriter]:
29
<PAGE>
[insert description of information, such as material relationship
disclosure under the caption "Underwriting" in the prospectus supplement].
(1)
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company
and the several Underwriters in accordance with its terms.
Very truly yours,
AMERICAN TOWER CORPORATION
By.................................
[Insert title]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
[If no co-representative, use first
confirmation form. If co-representative,
use second.]
........................................
By..................................................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several Underwriters.]
........................................
..........................................................
.........................................................,
[Acting on behalf of themselves and as the
Representatives of the several Under-writers.]
By ........................................
By......................................................
[Insert title]
--------
(1) Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
30
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Principal [Principal
Underwriter [Firm] Optional
Amount Amount]
<S> <C> <C>
$
------------
Total.......................................... $
============
</TABLE>
31
<PAGE>
ANNEX II
AMERICAN TOWER CORPORATION
("Company")
Warrants
TERMS AGREEMENT
___________ __, 20__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement[s] on Form S-3 (No. 333-37988[; No.
333-________]) ("Underwriting Agreement"), the following securities ("Offered
Securities") on the following terms:
Description of Warrants:
Title of Warrant:
Warrant Agent:
Warrant Agreement: Warrant Agreement, dated as of [_____ __],
2000, between the Company and the above-named Warrant Agent.
Warrant exercise price currency and date:
Over-Allotment Option: [Yes] [No]
[Over-Allotment Option Percentage:]
Principal amount or number of Securities
issuable upon exercise of Warrant:
Date after which Warrants may be exercised:
32
<PAGE>
Expiration Date:
Detachable Date:
Description of Securities issuable
Upon exercise of Warrants:
Listing: [None.] [New York Stock Exchange.][The Nasdaq Stock
Market Inc.'s National Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall
be , 20__. Underwriters' fee is $ per share of the
Contract Securities.]
Purchase Price: $ per share [If preferred stock issue,
insert--plus accrued dividends[,if any,] from , 20 ].
Expected Reoffering Price: $ per share, subject to change
by the [Representative[s]] [Underwriters].
Closing: A.M. on , 20__, at
, in Federal (same day) funds.
Settlement and Trading: [Physical certificated form.]
[Book-Entry Only via DTC. The Offered Securities [will][will not] trade in DTC's
Same Day Funds Settlement System.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]]
[Underwriter[s]]:]
The respective number of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing
Date.
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the prospectus
supplement [If paragraph regarding passive market making is included,
insert--and the information contained in the paragraph under the caption
"Underwriting" in the prospectus supplement] [If applicable, insert--; and (ii)
the following information in the prospectus supplement furnished on behalf of
[insert name of Underwriter]: [insert description of information, such as
material relationship disclosure under the caption "Underwriting" in the
prospectus supplement].(2)
--------
(2) Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
33
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
AMERICAN TOWER CORPORATION
By.................................
[Insert title]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
[If no co-representative, use first
confirmation form. If co-representative,
use second.]
........................................
By..................................................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
........................................
...........................................................
...........................................................
[Acting on behalf of themselves and as the
Representatives of the
several Underwriters.]
By ........................................
By.......................................................
[Insert title]
34
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Number of [Number of
Underwriter [Firm] Optional
Warrants Warrants]
<S> <C> <C>
-------------
Total.....................................................................
=============
</TABLE>
35
<PAGE>
ANNEX III
AMERICAN TOWER CORPORATION
("Company")
[Preferred Stock]
[Common Stock]
[Depositary Shares]
TERMS AGREEMENT
___________ __, 20__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statements on Form S-3 (No. 333-37988; No. 333-________)
("Underwriting Agreement"), the following securities ("Offered Securities") on
the following terms:
Title:
Number of [Depositary] Shares:
Over-Allotment Option: [Yes] [No]
[Over-Allotment Option Percentage:]
[Determination of Allocation of Over-Allotment Option between
the Company and the Selling Stockholders:]
[Dividend Rate:]
[Optional Redemption:]
[Sinking Fund:]
36
<PAGE>
Listing: [None.] [New York Stock Exchange.] [The Nasdaq Stock
Market Inc.'s National Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall
be , 20__. Underwriters' fee is $ per share of the
Contract Securities.]
Purchase Price: $ per [Depositary] share [If preferred
stock issue or depositary share, insert--plus accrued dividends[, if any,] from
, 20__].
Expected Reoffering Price: $ per [Depositary] share,
subject to change by the [Representative[s]] [Underwriters].
[Name of Depositary:]
[Deposit Agreement: Deposit Agreement, dated as of [_____ __],
2000, among the Company, the above-named
Depositary and the holders from time to
time of depositary receipts issued
thereunder.]
[Fraction of a Share equal to one Depositary Share:]
[SEC File No. of Selling Stockholder Registration Statement:]
[Custodian]
[Name[s] and Address[es] of Selling Stockholder[s]:]
Closing: A.M. on , 20__, at
, in Federal (same day) funds.
Underwriter[s']['s] Compensation: $ payable to
the [Representative[s] for the proportionate accounts of the] Underwriter[s] on
the Closing Date.
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]]
[Underwriter[s]]:]
[Name[s] and Address[es] of Selling Stockholder
Representative[s]:]
The respective numbers of shares of the Offered Securities to
be purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto. [The respective number of shares of the Offered Securities to
be sold by [each of] the Selling Stockholder[s] are set forth opposite [their]
[its] name[s] in Schedule B hereto.]
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing
Date.
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the prospectus
supplement [If paragraph regarding passive
37
<PAGE>
market making is included, insert--and the information contained in the
paragraph under the caption "Underwriting" in the prospectus supplement] [If
applicable, insert--; and (ii) the following information in the prospectus
supplement furnished on behalf of [insert name of Underwriter]: [insert
description of information, such as material relationship disclosure under the
caption "Underwriting" in the prospectus supplement].(2)
--------
(2) Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
38
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
AMERICAN TOWER CORPORATION
By.................................
[Insert title]
[Each of the Selling Stockholders
Listed on Schedule B Hereto
By.................................]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
[If no co-representative, use first
confirmation form. If co-representative,
use second.]
........................................
By..................................................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
........................................
...........................................................
...........................................................
[Acting on behalf of themselves and as the
Representatives of the
several Underwriters.]
39
<PAGE>
By ........................................
By.......................................................
[Insert title]
40
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Number of [Number of
Underwriter [Firm] Optional
----------- Shares Shares]
------ ------
<S> <C> <C>
------------
Total.....................................................................
============
</TABLE>
41
<PAGE>
<TABLE>
<CAPTION>
[SCHEDULE B]
Number of [Number of
Selling Stockholder [Firm] Optional
------------------- Shares to Shares to be
be Sold Sold]
--------- ------------
<S> <C> <C>
---------------
Total.....................................................................
===============
</TABLE>
42
<PAGE>
ANNEX IV
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on ........................ ............, 20__.(3))
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
AMERICAN TOWER CORPORATION
c/o ........................................
Gentlemen:
The undersigned hereby agrees to purchase from American Tower Corporation,
a Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 20__ ("Delivery Date"),]
[$]..............[shares]
--principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated , 20__ and a
Prospectus Supplement dated , 20__ relating thereto, receipt of copies of which
is hereby acknowledged, at-- % of the principal amount thereof plus accrued
interest, if any,--$ per share plus accrued dividends, if any,--and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the--principal--amounts set
forth below:
--------
(3) Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
43
<PAGE>
Principal Amount
----------------
Number
Delivery Date of [Warrants] Shares
------------- --------------------
................................ .............
................................ .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
in Federal (same day) funds by wire transfer to an account designated by the
Company at a bank acceptable to the Lead Underwriter, at the office of at
A.M. on--the--such--Delivery Date upon delivery to the undersigned of the
Securities to be purchased by the undersigned--for delivery on such Delivery
Date--in definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on--the--each--Delivery Date shall be subject only to
the conditions that (1) investment in the Securities shall not
at--the--such--Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and which governs such
investment and (2) the Company shall have sold to the Underwriters the
total--principal amount--number of shares--of the Securities less the--principal
amount---number of shares--thereof covered by this and other similar Contracts.
The undersigned represents that its investment in the Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
44
<PAGE>
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
...........................................
(Name of Purchaser)
By ........................................
...........................................
(Title of Signatory)
...........................................
...........................................
(Address of Purchaser)
Accepted, as of the above date.
AMERICAN TOWER CORPORATION
By ....................................
[Insert Title]
45
<PAGE>
ANNEX V
American Towers, Inc.
ATC Holding, Inc.
ATC Operating, Inc.
ATC GP Inc.
ATC LP, Inc.
American Tower, L.P.
Towersites Monitoring, Inc.
ATC Teleports, Inc.
ATC Realty, Inc.
ATI Merger Corporation ATC Financing LLC ATC Broadcast GP, Inc.
American Tower Delaware Corporation
46
