SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
January 22, 1998 (January 8, 1998)
AMERICAN RADIO SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-26102 04-3196245
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation File Number) Identification No.)
116 Huntington Avenue
Boston, Massachusetts 02116
(Address of Principal Executive Offices Zip Code)
(617) 375-7500
(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events
1. On January 8, 1998, American Tower Systems (Delaware), Inc.
(formerly known as American Tower Systems, Inc. ("ATSI")), an indirect
wholly-owned subsidiary of American Radio Systems Corporation ("ARS"),
consummated the transactions contemplated by the Stock Purchase Agreement by and
among ATSI, OPM-USA, Inc. ("OPM"), a Florida corporation, and the Stockholders
of OPM, dated as of September 30, 1997 (the "Stock Purchase Agreement"),
pursuant to which ATSI acquired all of the outstanding stock of OPM. Pursuant to
the terms of the Stock Purchase Agreement, ATSI paid OPM approximately $21.3
million at closing representing the initial installment in the aggregate
purchase price, which could approximate $105.0 million. This initial advance of
the purchase price was financed with borrowings under the ATSI credit facility.
As of December 31, 1997, OPM owned, leased and operated approximately
90 communications tower sites in the southeastern United States (primarily
Florida) and was also engaged in the business of managing communication sites
for third parties. OPM is in the process of developing an additional 160 towers
which are expected to be constructed during the next 12 to 18 months. Pursuant
to the terms of the agreement, ATS will finance up to $37.0 million of such
construction financing, of which approximately $5.7 million was advanced as of
December 31, 1997. Additional installments of the purchase price are contingent
upon the number of constructed towers and projected cash flow for these towers
and will be made quarterly through August 31, 1999.
For more information, see the Stock Purchase Agreement, which is
incorporated by reference to the ARS Quarterly Report on Form 10-Q for the
period ended September 30, 1997.
2. On January 22, 1998, ATS and ATSI consummated the transaction
contemplated by the Agreement and Plan of Merger, dated as of November 21, 1997
(the "Gearon Merger Agreement"), as amended by Amendment No. 1 to Agreement and
Plan of Merger, dated as of January 22, 1998 ("Amendment No.1"), by and among
American Tower Systems Corporation ("ATS"), a subsidiary of ARS, ATSI, Gearon &
Co., Inc. ("Gearon"), a Georgia corporation, and J. Michael Gearon, Jr., the
principal stockholder of Gearon (the "Gearon Stockholder"), pursuant to which
Gearon merged with and into ATSI (the "Gearon Merger"). Pursuant to the Gearon
Merger, ATS issued an aggregate of 5,333,333 shares of ATS Class A Common Stock
and paid approximately $24.6 million in cash and assumed liabilities of
approximately $7.4 million for an aggregate agreed upon consideration of
approximately $80.0 million.
For more information, see the Gearon Merger Agreement, which is
incorporated by reference as Exhibit 2.2 to the ARS Current Report on Form 8-K,
dated December 23, 1997, Amendment No. 1, which is attached herewith as Exhibit
2.1, and the ARS press release, dated December 3, 1997, which is incorporated by
reference as Exhibit 99.2 to the ARS Current Report on Form 8-K, dated December
23, 1997.
3. On January 22, 1998, ATS consummated the transactions contemplated
by the American Tower Systems Corporation Stock Purchase Agreement, dated as of
January 8, 1998 (the "ATS Stock Purchase Agreement"), by and among ATS and
certain officers, directors and other affiliates of ARS (individually a
"Purchaser" and collectively, the "Purchasers"), pursuant to which ATS issued an
aggregate of 8,000,000 shares of ATS Class A Common Stock, ATS Class B Common
Stock and ATS Class C Common Stock at a price of $10.00 per share for an
aggregate agreed upon consideration of $80.0 million, of which approximately
$31.0 was paid in the form of cash and the balance in the form of promissory
notes due on the earlier of consummation of the merger of ARS and a subsidiary
of CBS Corporation and December 31, 2000, secured by ARS Common Stock.
<PAGE>
For more information, see the ATS Stock Purchase Agreement, which is
attached herewith as Exhibit 10.2, the ATS press release, dated January 8, 1998,
which is incorporated by reference as Exhibit 99.1 to the ARS Current Report on
Form 8-K, dated January 9, 1998.
Item 7. Financial Statements and Exhibits
(c). Exhibits
Exhibit 2.1 - Amendment No. 1, dated as of January 22, 1998, among
ATS, ATSI, Gearon and the Gearon Stockholder.
Exhibit 2.2 - Agreement and Plan of Merger, dated as of
November 21, 1997, by and among ATS, ATSI, Gearon and
the Gearon Stockholder.*
Exhibit 10.1 - Stock Purchase Agreement, dated as of September
30, 1997, by and among ATSI, OPM-USA, Inc. and the
Stockholders of OPM - USA, Inc.**
Exhibit 10.2 - ATS Stock Purchase Agreement, dated as of
January 8, 1998, by and among ATS and the Purchasers.
Exhibit 99.1 - ARS Press Release, dated December 3, 1997.***
Exhibit 99.2 - ATS Press Release, dated January 8, 1998.****
* Filed as Exhibit 2.2 to the ARS Current Report on
Form 8-K, dated December 23, 1997.
** Filed as Exhibit 10.6 to the ARS Quarterly Report on
Form 10-Q for the period ended September 30, 1997.
*** Filed as Exhibit 99.2 to the ARS Current Report on
Form 8-K, dated December 23, 1997.
**** Filed as Exhibit 99.1 to the ARS Current Report on
Form 8-K, dated January 9, 1998.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAN RADIO SYSTEMS
CORPORATION
(Registrant)
Date: January 22, 1998 By: /s/ Justin D. Benincasa
Name: Justin D. Benincasa
Title: Vice President and
Corporate Controller
EXHIBIT 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT No. 1 TO AGREEMENT AND PLAN OF MERGER is made as of
January 22, 1998, among American Tower Systems Corporation, a Delaware
corporation ("ATS"), American Tower Systems (Delaware), Inc., a Delaware
corporation formerly known as American Tower Systems, Inc. ("ATSI"), Gearon &
Co., Inc., a Georgia corporation ("Gearon"), and J. Michael Gearon, Jr. (the
"Gearon Stockholder").
W I T N E S S E T H:
WHEREAS, ATS, ATSI, Gearon and the Gearon Stockholder are parties to an
Agreement and Plan of Merger dated as of November 21, 1997 (the "Merger
Agreement"); and
WHEREAS,ATS, ATSI, Gearon and the Gearon Stockholder have agreed to
amend the Merger Agreement as set forth herein pursuant to Section 11.1 of the
Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto,
intending to be legally bound, agree as follows:
1. Section 3.1(b) of the Merger Agreement is hereby deleted and the
following new Section 3.1(b) is inserted in its place:
"(b) Each share of Common Stock, no par value, of Gearon (the
"Gearon Common Stock") issued and outstanding immediately prior to the
Effective Time (other than shares held in the treasury of Gearon)
shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into the right to receive its pro-rata
share of the following:
(i) with respect to Dan King Brainard, Jeff Ebihara
and Doug Wiest, 555,555, 22,221 and 44,444 shares,
respectively, of Class A Common Stock, par value $.01 per
share, of ATS (the "ATS Class A Common Stock") (being a number
of shares of ATS Class A Common Stock with an agreed upon fair
market value of $5,000,000, $200,000 and $400,000,
respectively, based on an agreed upon per share value of the
ATS Class A Common Stock of $9.00, which ATS represents is not
more than the price per share at which shares are to be sold
pursuant to the ATS Private Placement) to be issued to each
such Gearon stockholder in proportion to the number of shares
of Gearon Common Stock held by such stockholder to the number
of shares of Gearon Common Stock held by all such stockholders
(the "Gearon Employees Consideration"); and
<PAGE>
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(ii) with respect to the Gearon Stockholder and The
1997 Gearon Family Trust, (A) 4,240,002 and 471,111 shares,
respectively, of ATS Class A Common Stock (being a number of
shares of ATS Class A Common Stock with an agreed upon fair
market value of $42,400,000 based on an agreed upon per share
value of the ATS Class A Common Stock of $9.00, which ATS
represents is not more than the price per share at which
shares are to be sold pursuant to the ATS Private Placement)
(the "Gearon Common Stock Consideration"), and (B) $28.8
million and $3.2 million, respectively, in immediately
available funds (the "Cash Consideration" and collectively,
with the Gearon Common Stock Consideration, the "Merger
Consideration" which term shall include any adjustment
pursuant to the provisions of this Section).
Notwithstanding the foregoing, the Cash Consideration shall be (i)
increased by an amount equal to the Net Working Capital of Gearon (if
positive) on and as of the Closing Date, and (ii) decreased by an
amount equal to the Net Working Capital of Gearon (if negative) on and
as of the Closing Date. The term "Exchange Merger Consideration" shall
mean an amount equal to the Gearon Employees Consideration or the
Merger Consideration, as the case may be, divided by the aggregate
number of shares of Gearon Common Stock (the "Gearon Shares") issued
and outstanding at the Effective Time and held of record at the
Effective Time by the Persons (x) named in paragraph (i), in the case
of the Gearon Employees Consideration, and (y) named in paragraph (ii),
in the case of the Gearon Common Stock Consideration and the Cash
Consideration.
At the Effective Time, all Gearon Shares shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and certificates previously evidencing any such Gearon Shares (each, a
"Certificate") shall thereafter represent the right to receive, upon the
surrender of such Certificate in accordance with the provisions of Section 3.2,
the Exchange Merger Consideration multiplied by the number of Gearon Shares
represented by such Certificate, and a holder of more than one Certificate shall
have the right to receive the Exchange Merger Consideration multiplied by the
number of Gearon Shares represented by all such Certificates. In lieu of issuing
fractional shares, ATS shall convert the holder's right to receive ATS Class A
Common Stock pursuant to the provisions of this Section into a right to receive
the highest whole number of shares of ATS Class A Common Stock constituting the
Exchange Merger Consideration plus cash equal to the fraction of a share of ATS
Class A Common Stock to which the holder would otherwise be entitled multiplied
by $9.00, and the Exchange Merger Consideration to which a holder is entitled
shall be deemed to be such number of shares of ATS Class A Common Stock, the
Cash Consideration and such cash. The holders of such Certificates previously
evidencing Gearon Shares outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such Gearon Shares, except as
otherwise provided herein or by Applicable Law. "
2. The definitions of "Collateral Documents" and "Gearon" appearing in
Appendix A of the Merger Agreement are each hereby deleted and the following new
definitions are inserted in their places, respectively:
<PAGE>
-3-
"Collateral Documents shall mean the Agreement and Plan of Merger by
and among ATSI, Communications Towers, Inc. and the Gearon Stockholder, the
Indemnity Escrow Agreement, the ATS Noncompetition Agreements, the Gearon
Employment Agreement, the Gearon Notes, the Gearon Security Agreement, the
Gearon Investment Letters, the Certificate of Merger, the Articles of Merger,
and any other agreement, certificate, contract, instrument, notice, opinion or
other document delivered pursuant to the provisions of this Agreement or any
Collateral Document."
"Gearon shall have the meaning given to it in the Preamble and shall
include CTI, unless the context otherwise implies."
3. All references in the Merger Agreement and each Collateral Document
to "American Tower Systems, Inc." are hereby deleted and replaced by the name
"American Tower Systems (Delaware), Inc.," and all references to "ATSI" in the
Merger Agreement and each Collateral Document shall be deemed to refer to
American Tower Systems (Delaware), Inc.
4. Each of ATS, ATSI, Gearon and the Gearon Stockholder represents and
warrants that all requisite corporate and other action necessary for the valid
execution and delivery of this Amendment No. 1 has been duly and effectively
taken.
5. Each capitalized term used herein without definition shall have the
same meaning herein as is given to such term in the Merger Agreement.
6. The Merger Agreement as amended hereby is ratified and confirmed in
all respects and shall continue in full force and effect.
7. This Amendment No. 1 may be executed in one or more counterparts,
and by the different Parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[Remainder of page intentionally left blank.]
<PAGE>
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
American Tower Systems Corporation
By:_____________________________________
Name:
Title:
American Tower Systems (Delaware), Inc.
By:_____________________________________
Name:
Title:
Gearon & Co., Inc.
By:______________________________________
Name:
Title:
Gearon Stockholder
J. Michael Gearon, Jr.
EXHIBIT 10.2
AMERICAN TOWER SYSTEMS CORPORATION
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of January 8, 1998 by and
among American Tower Systems Corporation, a Delaware corporation ("ATS"), and
each of the undersigned individuals (individually a "Purchaser" and
collectively, the "Purchasers").
WHEREAS, the Purchasers desire to purchase, and ATS is willing to sell,
shares of Class A Common Stock, par value $.01 per share, of ATS (the "Class A
Common Stock"), shares of Class B Common Stock, par value $.01 per share, of ATS
(the "Class B Common Stock), and shares of Class C Common Stock, par value $.01
per share, of ATS (the "Class C Common Stock and, collectively with the Class A
Common Stock and the Class B Common Stock, the "ATS Common Stock"), all on the
terms and subject to the conditions of this Agreement; and
WHEREAS, ATS is party to an Agreement and Plan of Reorganization (as
heretofore amended, the "Gearon Merger Agreement"), dated as of November 21,
1997, with Gearon & Company, Inc., a Georgia corporation ("Gearon"), pursuant to
which Gearon will be merged (the "Gearon Merger") with and into ATS and it is a
condition of the consummation of the Gearon Merger that an agreement of the
nature contemplated hereby shall have been executed, delivered and consummated;
and
WHEREAS, ATS is party to an Agreement and Plan of Reorganization (the
"ATC Merger Agreement"), dated as of December 12, 1997, with American Tower
Corporation, a Delaware corporation ("ATC"), pursuant to which ATC will be
merged (the "ATC Merger") with and into ATS and it is a condition of the
consummation of the ATC Merger that an agreement of the nature contemplated
hereby shall have been executed, delivered and consummated; and
WHEREAS, ATS is a wholly-owned subsidiary of American Radio Systems
Corporation, a Delaware corporation ("ARS"); and
WHEREAS, ATS and the Purchasers wish to provide for the terms and
conditions of the purchase and sale of the ATS Common Stock and certain related
matters;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, in order to satisfy a condition to consummation of
each of the Gearon Merger and the ATC Merger, and other valuable consideration,
the receipt and adequacy whereof are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby covenant and agree as follows:
<PAGE>
SECTION 1. Authorization and Closing.
(a) Authorization of the Securities. ATS has authorized the issue and
sale to the Purchasers, and the Purchasers, severally and not jointly, have
agreed to purchase, the respective number of shares of ATS Common Stock set
forth below opposite the names of the Purchasers (collectively, the "Subject
Shares") at a purchase price equal to $10.00 per share.
<TABLE>
<CAPTION>
Name of Purchaser Number of Shares Class of Stock
----------------- ---------------- --------------
<S> <C> <C>
Steven B. Dodge* 4,000,000 Class B
Alan Box* 450,000 Class A
Charlton H. Buckley 300,000 Class A
Chase Equity Associates 2,000,000 Class C
James S. Eisenstein 25,000 Class A
Arthur C. Kellar 400,000 Class A
Steven J. Moskowitz 25,000 Class A
Thomas H. Stoner* 465,000 Class B
Katharine E. Stoner* 22,500 Class B
Theodore A. Stoner 15,000 Class A
Thomas H. Stoner, Jr 26,550 Class A
Thomas H. Stoner Irrevocable Trust 80,000 Class B
Ruth H. Stoner Irrevocable Trust 82,450 Class B
Alden Elizabeth Stoner 35 Trust 22,500 Class A
Thomas and Katharine Stoner Foundation 36,000 Class A
Ruth Rochelle Stoner 50,000 Class A
<FN>
* Indicates that payment to be made in the form of a Purchaser Note (collectively, the "Note
Purchasers").
</FN>
</TABLE>
(b) Purchase and Sale of the Subject Stock. At the Closing, subject to
the terms and conditions set forth herein, ATS shall issue to each of the
Purchasers, and each of the Purchasers, severally and not jointly, shall acquire
from ATS, the respective number of Subject Shares set forth in Section 1(a). The
obligation of each of the Purchasers shall not be conditioned on any other
Purchaser satisfying its obligations under this Agreement. Payment of the
purchase price shall be made by the delivery by each Purchaser as follows:
(i) each of the Purchasers, other than the Note Purchasers,
will make payment in the form of a wire transfer of immediately
available funds or bank cashier's or certified check; and
(ii) each of the Note Purchasers will make payment in the form
of a promissory note (individually, a "Purchaser Note" and
collectively, the "Purchaser Notes") substantially in the form of
Exhibit A attached hereto and made a part hereof. Each Purchaser Note
shall be secured by a pledge of shares of Common Stock, par value $.01
per share, of ARS (the "ARS Common Stock"), pursuant to the provisions
of a pledge agreement (individually a "Pledge Agreement" and
collectively the "Pledge Agreements") substantially in the form of
Exhibit B attached hereto and made a part hereof.
(c) The Closing. The closing (the "Closing") of the issue and
acquisition of the Subject Shares shall take place at the offices of Sullivan &
Worcester, New York, New York at 10:00 a.m. simultaneously with the
effectiveness of the Gearon Merger, or at such other date and place as may be
mutually agreeable
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<PAGE>
to ATS and a majority in interest of the Purchasers. At the Closing, ATS shall
deliver to each of the Purchasers, against delivery of cash or the appropriate
Purchaser Notes and Pledge Agreements, as the case may be, stock certificates
evidencing the Subject Shares to which the respective Purchasers are entitled,
registered in the name of such Purchaser or his or its nominee. Any wire
transfer of funds shall be made to such bank account in the United States as
shall have been designated in writing by ATS not less than two (2) business days
prior to the Closing. ATS shall promptly notify each of the Purchasers of the
proposed date of consummation of the Gearon Merger.
SECTION 2. Conditions of each Purchaser's Obligation. The obligation of
each Purchaser to acquire the Subject Shares to be purchased by such Purchaser
at the Closing is subject to the satisfaction (or waiver in writing by such
Purchaser) as of the Closing of the following conditions:
(a) Representations and Warranties; Covenants. The
representations and warranties contained in Section 4 shall be true and
correct in all material respects at and as of the Closing as though
then made, except to the extent of changes caused by the transactions
expressly contemplated herein, and ATS shall have performed in all
material respects all of the covenants required to be performed by it
hereunder prior to the Closing.
(b) CBS Merger Agreement. ARS, R Acquisition Corp., a Delaware
corporation ("CBS Sub"), a wholly-owned subsidiary of CBS Corporation
(formerly Westinghouse Electric Corporation), a Pennsylvania
corporation ("CBS")) and CBS have heretofore entered into an Agreement
and Plan of Merger, dated as of September 19, 1997, as amended and
restated by an Amended and Restated Agreement and Plan of Merger, dated
as of December 18, 1997 (as so amended and restated, the "CBS Merger
Agreement"), and the CBS Merger Agreement shall be in full force and
effect as of the Closing and shall not have been amended or modified in
any respect materially adverse to ATS.
(c) Gearon Merger Agreement. The Gearon Merger Agreement shall
be in full force and effect as of the Closing and shall not have been
amended or modified in any respect materially adverse to ATS, and the
Gearon Merger shall have been or simultaneously to the Closing will be
consummated substantially in accordance with the terms of the Gearon
Merger Agreement.
(d) ATC Merger Agreement. The ATC Merger Agreement shall be in
full force and effect as of the Closing and shall not have been amended
or modified in any respect materially adverse to ATS.
(e) Registration Rights Agreement. ATS shall have executed and
delivered to each of the Purchasers an agreement substantially in the
form of Exhibit C attached hereto and made a part hereof (the
"Registration Rights Agreement").
(f) Blue Sky Clearance. ATS shall have made all filings under
applicable state securities laws necessary to consummate the issue of
the Subject Shares pursuant to this Agreement in compliance with such
laws.
(g) Legal Opinion. ATS shall have delivered to each of the
Purchasers an opinion of Sullivan & Worcester LLP, counsel for ATS, as
to the due organizations and corporate existence of ATS, the due
authorization, execution, delivery and binding effect of this
Agreement, and the due authorization and valid issuance of the Subject
Shares and their fully paid and nonassessable status.
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<PAGE>
(h) Proceedings. All corporate and other proceedings taken or
required to be taken by ATS in connection with the transactions
contemplated hereby to be consummated at or prior to the Closing and
all documents incident thereto shall be reasonably satisfactory in form
and substance to the Purchasers and their counsel.
(i) Closing Documents. ATS shall have delivered to each of the
Purchasers all of the following documents:
(i) an officer's certificate, dated the date of the
Closing, stating that the conditions specified in paragraphs
(a) through (f) of this Section have been satisfied in all
material respects;
(ii) certified copies of the resolutions duly adopted
by the ATS board of directors and, to the extent applicable,
ARS, as the sole stockholder of ATS, authorizing the
execution, delivery and performance of this Agreement, the CBS
Merger Agreement, the Gearon Merger Agreement, the ATC Merger
Agreement and each of the other agreements contemplated
hereby, the issuance of the Subject Shares, and the
consummation of all other transactions contemplated by this
Agreement;
(iii) certified copies of the Restated Certificate of
Incorporation (the "Restated Certificate") and the bylaws of
ATS, each as in effect at the Closing;
(iv) certified copies of the CBS Merger Agreement,
the Gearon Merger Agreement and the ATC Merger Agreement as in
effect at the Closing;
(v) copies of all third party and governmental
consents, approvals and filings required in connection with
the consummation of the transactions contemplated hereby
(including, without limitation, all state securities law
filings); and
(vi) such other documents, instruments and
certificates relating to the transactions contemplated by this
Agreement as any Purchaser or his or its counsel may
reasonably request.
SECTION 3. Conditions of ATS' Obligation. The obligation of ATS to
issue and sell the Subject Shares to each Purchaser at the Closing is subject to
the satisfaction (or waiver in writing by ATS) as of the Closing of the
following conditions:
(a) Representations and Warranties; Covenants. The
representations and warranties of such Purchaser contained in Section 5
shall be true and correct in all material respects at and as of the
Closing as though then made, except to the extent of changes caused by
the transactions expressly contemplated herein, and such Purchaser
shall have performed in all material respects all of the covenants
required to be performed by him or it hereunder prior to the Closing.
(b) CBS Merger Agreement. The CBS Merger Agreement shall be in
full force and effect as of the Closing and shall not have been amended
or modified in any respect materially adverse to ATS.
(c) Gearon Merger Agreement. The Gearon Merger Agreement shall
be in full force and effect as of the Closing and shall not have been
amended or modified in any respect materially
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<PAGE>
adverse to ATS, and the Gearon Merger shall have been or proposed
simultaneously with the Closing to be consummated substantially in
accordance with the terms of the Gearon Merger Agreement.
(d) ATC Merger Agreement. The ATC Merger Agreement shall be in
full force and effect as of the Closing and shall not have been amended
or modified in any respect materially adverse to ATS.
(e) Registration Rights Agreement. Each of the Purchasers
shall have executed and delivered to ATS the Registration Rights
Agreement.
(f) Blue Sky Clearance. The issue and sale of the Subject
Stock shall not be in violation of any applicable state securities
laws.
(g) Proceedings. All corporate and other proceedings taken or
required to be taken by such Purchaser in connection with the
transactions contemplated hereby to be consummated at or prior to the
Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to ATS and its counsel.
(h) Closing Documents. Such Purchaser shall have delivered to
ATS such documents, instruments and certificates relating to the
transactions contemplated by this Agreement as ATS or its counsel may
reasonably request and, in the case of the Note Purchasers, the
Purchaser Note and the Pledge Agreement, together with evidence of the
pledge of shares of ARS Common Stock contemplated by the Pledge
Agreement.
SECTION 4. Representations and Warranties of ATS. As a
material inducement to the Purchasers to enter into this Agreement and purchase
the Subject Shares, ATS hereby makes the following representations and
warranties to each of the Purchasers.
(a) Organization and Corporate Power. ATS and each of its
subsidiaries is an Entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and is
qualified to do business in each jurisdiction in which the failure so
to qualify would reasonably be expected to have a material adverse
effect on the business, financial condition or results of operation of
ATS and its subsidiaries taken as a whole. ATS and each of its
subsidiaries has all requisite corporate and other power and authority
and all material licenses, permits and authorizations necessary to own
and operate its properties, to carry on its businesses as now conducted
and presently proposed to be conducted and, in the case of ATS, to
execute and deliver and consummate the transactions contemplated by
this Agreement.
(b) Material Statements and Omissions; Absence of Events. The
information with respect to ATS included in the ATS Information
Statement/Prospectus, dated December , 1997 heretofore delivered by ATS
to each of the Purchasers (the "ATS Information Statement/Prospectus")
does not and will not contain any untrue statement of a material fact
and does not and will not omit to state any material fact required to
make any statement contained herein or therein, in light of the
circumstances under which they were made, not misleading. Since the
date of the most recent financial statements set forth in the ATS
Information Statement/Prospectus, except to the extent described in the
ATS Information Statement/Prospectus, there has been no material
adverse change in ATS.
(c) Capital Stock and Related Matters.
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<PAGE>
(i) The authorized and issued capital stock of ATS is as set
forth in the ATS Information Statement/Prospectus. ATS does not have
outstanding any stock or securities convertible or exchangeable for any
shares of its capital stock or containing any profit participation
features, nor does it have outstanding any rights or options to
subscribe for or to purchase its capital stock or any stock or
securities convertible into or exchangeable for its capital stock or
any stock appreciation rights or phantom stock plans, except as set
forth in the ATS Information Statement/Prospectus. ATS is not subject
to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its capital stock or any warrants,
options or other rights to acquire its capital stock. All of the
outstanding shares of the ATS Common Stock are, and all of the Subject
Shares and the Exchanged Shares will, upon issuance pursuant to the
provisions of this Agreement, be, duly authorized, validly issued,
fully paid and nonassessable.
(ii) There are no statutory or, to the best of ATS' knowledge,
contractual stockholder preemptive rights or rights of refusal with
respect to the issuance of the Subject Shares or the Exchanged Shares.
ATS has not violated any applicable federal or state securities laws in
connection with the offer, sale or issuance of any of its capital
stock, and, based on the representations and warranties of the
Purchasers set forth in Section 5(g), the offer, sale and issuance of
the Subject Shares and the Exchanged Shares hereunder do not require
registration under the Securities Act of 1933, as amended (the
"Securities Act") or any applicable state securities laws.
(d) Authorization; No Breach. The execution, delivery and
performance of this Agreement, the CBS Merger Agreement, the ATS Merger
Agreement, the Registration Rights Agreement and all other agreements
contemplated hereby to which ATS is or will be a party have been duly
authorized by ATS. This Agreement, the CBS Merger Agreement, the Gearon
Merger Agreement, the ATC Merger Agreement, the Registration Rights
Agreement and all other agreements contemplated hereby each constitutes
a valid and binding obligation of ATS, enforceable in accordance with
its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other laws of general applicability affecting the
enforcement of creditors' or secured parties' rights or debtors'
obligations generally and (ii) the availability of specific performance
or other equitable remedies may be limited by equitable principles of
general applicability (whether such matter is considered in a
proceeding at law or in equity). The (x) execution and delivery by ATS
of this Agreement, the Registration Rights Agreement and the Pledge
Agreement, (y) offering, sale and issuance of the Subject Shares and
the Exchanged Shares hereunder, and (z) fulfillment of and compliance
with the respective terms hereof and thereof by ATS, do not and shall
not, except in respect of clause (z) above, for filings and other
actions to be performed upon the occurrence of certain future events,
as contemplated by the Registration Rights Agreement, (i) conflict with
or result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) result in the creation of any lien,
security interest, charge or encumbrance upon ATS' or any subsidiary's
capital stock or assets pursuant to, (iv) give any third party the
right to modify, terminate or accelerate any obligation under, (v)
result in a violation of, or (vi) require any authorization, consent,
approval, exemption or other action by or notice to any court or
administrative or governmental body pursuant to, the charter or by-laws
or other organizational documents of ATS or any subsidiary, or any law,
statute, rule or regulation to which ATS or any subsidiary is subject,
or any contract, agreement, instrument, order, judgment or decree to
which ATS or any subsidiary is subject, which such authorization,
consent, approval, exemption, action or notice has not been obtained,
except in all cases for such exceptions as would not, individually or
in the aggregate, have a material adverse effect on the business,
financial conditions or results of operation of ATS and its
subsidiaries taken as a whole.
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<PAGE>
(e) Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement binding upon ATS or any subsidiary. ATS shall pay, and hold
each of the Purchasers harmless against, any liability, loss or expense
(including, without limitation, reasonable attorneys' fees and
out-of-pocket expenses) arising in connection with any such claim.
(f) Governmental Consent, etc. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental
authority is required in connection with the execution, delivery and
performance by ATS of this Agreement or the other agreements
contemplated hereby, or the consummation by ATS of any other
transactions contemplated hereby or thereby, except as expressly
contemplated herein or therein or in the exhibits hereto or thereto.
SECTION 5. Representations and Warranties of each Purchaser. As a
material inducement to ATS to enter into this Agreement and issue and sell the
Subject Shares and exchange the Exchanged Shares, each of the Purchasers,
severally and not jointly with respect to himself or itself, hereby makes the
following representations and warranties to ATS and each of the other
Purchasers.
(a) Organization and Power. Such Purchaser, if a corporation,
partnership, trust or other legal entity, is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and has all requisite corporate, partnership, trust or
other power and authority to execute and deliver and consummate the
transactions contemplated by this Agreement.
(b) Authorization; No Breach. The execution, delivery and
performance of this Agreement, the Registration Rights Agreement and
all other agreements contemplated hereby (including without limitation
in the case of the Note Purchasers, the Purchaser Note and Pledge
Agreement to be delivered by such Purchaser) to which such Purchaser is
or will be a party have been duly authorized by such Purchaser. This
Agreement, the Registration Rights Agreement and all other agreements
contemplated hereby (including without limitation in the case of the
Note Purchasers, the Purchaser Note and Pledge Agreement to be
delivered by such Purchaser) to which such Purchaser is or will be a
party each constitutes a valid and binding obligation of such
Purchaser, enforceable in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other laws of general
applicability affecting the enforcement of creditors' or secured
parties' rights or debtors' obligations generally and (ii) the
availability of specific performance or other equitable remedies may be
limited by equitable principles of general applicability (whether such
matter is considered in a proceeding at law or in equity). The (x)
execution and delivery by such Purchaser of this Agreement, the
Registration Rights Agreement and all other agreements contemplated
hereby (including without limitation in the case of the Note
Purchasers, the Purchaser Note and Pledge Agreement to be delivered by
such Purchaser) to which such Purchaser is or will be a party, and (y)
fulfillment of and compliance with the respective terms hereof and
thereof by such Purchaser, do not and shall not, except in respect of
clause (y) above, for filings and other actions to be performed upon
the occurrence of certain future events, as contemplated by the
Registration Rights Agreement, (i) conflict with or result in a breach
of the terms, conditions or provisions of, (ii) constitute a default
under, (iii) result in the creation of any lien, security interest,
charge or encumbrance upon such Purchaser's assets pursuant to, (iv)
give any third party the right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or
notice to any court or administrative or governmental body pursuant to,
any law, statute, rule or regulation to which such Purchaser is
subject, or any contract, agreement, instrument, order, judgment or
decree to which such Purchaser is subject, which such authorization,
consent, approval, exemption, action or notice has not been obtained.
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<PAGE>
(c) Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement binding upon such Purchaser. Such Purchaser shall pay, and
hold each of ATS and the other Purchasers harmless against, any
liability, loss or expense (including, without limitation, reasonable
attorneys' fees and out-of-pocket expenses) arising in connection with
any such claim.
(d) ARS Common Stock. All shares of ARS Common Stock pledged
by each Note Purchaser pursuant to the provisions of such Purchaser's
Pledge Agreement, have, to such Purchaser's knowledge, been duly
authorized, validly issued, fully paid and nonassessable; such
Purchaser owns such shares free and clear of all liens and
encumbrances, other than those created by such Pledge Agreement.
(e) Governmental Consent, etc. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental
authority is required in connection with the execution, delivery and
performance by such Purchaser of this Agreement or the other agreements
contemplated hereby, or the consummation by such Purchaser of any other
transactions contemplated hereby or thereby, except as expressly
contemplated herein or therein or in the exhibits hereto or thereto.
(f) Investment Representation. Such Purchaser is an
"accredited investor" as such term is defined in Rule 501 of Regulation
D ("Regulation D") promulgated under the Securities Act. The Subject
Shares and, if applicable, the Exchanged Shares to be acquired by such
Purchaser are being acquired solely for the account of such Purchaser
for purposes of investment and not with a view to the sale, transfer or
other distribution thereof, as those terms are used in the Securities
Act and the rules and regulations promulgated thereunder; provided,
however, that nothing contained herein shall prevent such Purchaser and
subsequent holders of Subject Shares or, if applicable, Exchanged
Shares from transferring such securities in compliance with the
applicable provisions of the Securities Act (including without
limitation Rule 144 promulgated thereunder) and applicable state
securities laws. Each Purchaser, severally and not jointly, covenants
and agrees that he or it will not sell, assign, transfer or otherwise
dispose of any of the Subject Share or, if applicable, Exchanged Shares
to be acquired by such Purchaser in violation of the Securities Act or
applicable state securities laws. Each certificate for Subject Shares
and Exchanged Shares shall be imprinted with a legend in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE CONDITIONS SPECIFIED IN THE STOCK PURCHASE
AGREEMENT, DATED AS OF JANUARY , 1998, BETWEEN THE ISSUER
("ATS") AND THE PURCHASERS NAMED THEREIN, AND ATS RESERVES THE
RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER.
A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY ATS TO THE
HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE."
SECTION 6. Miscellaneous.
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<PAGE>
(a) Termination. This Agreement may be terminated with the mutual
consent of the Purchasers and ATS.
(b) Amendment. This Agreement may be amended, from time to time, by the
parties hereto at any time prior to the Closing Date but only by an instrument
in writing signed by the parties hereto or their respective successors or
assigns.
(c) Waiver. At any time prior to the Closing Date, the parties may,
either generally or in a particular instance and either retrospectively or
prospectively, extend the time for the performance of any of the obligations or
other acts of the other, and waive compliance by the other with any of the
agreements, covenants, conditions or other provisions contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
(d) Expenses. ATS agrees to pay the reasonable out-of-pocket expenses
of the Purchasers incident to the negotiation, preparation, performance and
enforcement of this Agreement (including all reasonable fees and expenses of
Purchasers' counsel (not to exceed in the aggregate $20,000), accountants and
other consultants, advisors and representatives for all activities of such
persons undertaken pursuant to this Agreement).
(e) Notices. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be given
in writing and shall be (a) mailed by first-class or express mail, postage
prepaid, or by recognized courier service, (b) sent by telecopy or other form of
rapid transmission, confirmed by mailing (by first class or express mail,
postage prepaid, or by recognized courier service) written confirmation at
substantially the same time as such rapid transmission, or (c) personally
delivered to the receiving party (which if, other than an individual, shall be
an officer or other responsible party of the receiving party). All such notices
and communications shall be mailed, sent or delivered as follows:
If to ATS: 116 Huntington Avenue
Boston, Massachusetts 02116
Attention: Joseph L. Winn, Chief Financial Officer
Telecopier No.: (617) 375-7575
with a copy to: Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attention: Norman A. Bikales, Esq.
Telecopier No.: (617) 338-2880; and
If to any of the Purchasers, at the address set forth in the stock
records of ATS;
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
(f) Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that in the event the other party should refuse to perform
any of its obligations under this Agreement, the remedy at law would be
inadequate and agrees that for breach of such provisions, each party shall, in
addition to such other remedies as may be available to it at law or in equity,
be entitled to injunctive relief and to enforce its rights by an action for
specific performance to the extent permitted by applicable law. Each party
hereby waives any requirement for security or the posting of any bond or other
surety in connection with any
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<PAGE>
temporary or permanent award of injunctive, mandatory or other equitable relief.
Nothing herein contained shall be construed as prohibiting each party from
pursuing any other remedies available to it under applicable law or pursuant to
the provisions of this Agreement for such breach or threatened breach, including
without limitation the recovery of damages.
(g) Survival of Representations, Warranties, Covenants and Agreements.
All of the representations, warranties, covenants and agreements set forth in
this Agreement shall survive the Closing.
(h) Severability. If any term or provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case. Notwithstanding the foregoing, in the event
of any such determination the effect of which is to affect materially and
adversely either the Purchasers or ATS, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the intent and purpose of this Agreement
is fulfilled and consummated to the maximum extent possible.
(i) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all of the
parties. In pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
(j) Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(k) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in accordance
with, the applicable laws of the United States of America and the laws of The
Commonwealth of Massachusetts applicable to contracts made and performed in such
State and, in any event, without giving effect to any choice or conflict of laws
provision or rule that would cause the application of domestic substantive laws
of any other jurisdiction, except to the extent the corporate laws of the State
of Delaware are applicable. Anything in this Agreement to the contrary
notwithstanding, in the event of any dispute between the parties which results
in a legal action, litigation or other proceeding, the prevailing party shall be
entitled to receive from the non-prevailing party reimbursement for reasonable
legal fees and expenses incurred by such prevailing party in such legal action,
litigation or other proceeding.
(l) Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such other
agreements, instruments or other documents and other assurances, as the other
party or its counsel reasonably deems necessary or desirable in order to carry
out the terms and conditions of this Agreement and the transactions contemplated
hereby or to facilitate the enjoyment of any of the rights created hereby or to
be created hereunder.
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<PAGE>
(m) Entire Agreement. This Agreement (together with the other
agreements, instruments and other documents delivered in connection herewith)
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements, arrangements, covenants,
promises, conditions, understandings, inducements, representations and
negotiations, expressed or implied, oral or written, among the parties, with
respect to the subject matter hereof and supersedes all prior agreements,
arrangements, covenants, promises, conditions, undertakings, inducements,
representations, warranties and negotiations, expressed or implied, oral or
written, between the parties, with respect to the subject matter hereof. Each of
the parties is a sophisticated investor or legal entity that was advised by
experienced counsel and, to the extent it deemed necessary, other advisors in
connection with this Agreement. Each of the parties hereby acknowledges that (i)
none of the parties has relied or will rely in respect of this Agreement or the
transactions contemplated hereby upon any document or written or oral
information previously furnished to or discovered by it or its representatives,
other than this Agreement (or such of the foregoing as are delivered at the
Closing, (ii) there are no covenants or agreements by or on behalf of any party
or any of its respective affiliates or representatives other than those
expressly set forth in this Agreement and the other agreements, instruments and
other documents delivered in connection herewith, and (iii) the parties'
respective rights and obligations with respect to this Agreement and the events
giving rise thereto will be solely as set forth in this Agreement and such other
agreements, instruments and other documents. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, EACH PARTY HERETO AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT AND, IN THE CASE OF THE NOTE PURCHASERS,
THE PLEDGE AGREEMENT, NONE OF THE PARTIES MAKES ON BEHALF OF ITSELF AND ITS
DIRECTORS, OFFICERS, STOCKHOLDERS, PARTNERS, TRUSTEES, BENEFICIARIES AND OTHER
AFFILIATES ANY OTHER REPRESENTATIONS OR WARRANTIES, AND EACH HEREBY DISCLAIMS ON
BEHALF OF ITSELF AND ITS OFFICERS, DIRECTORS, STOCKHOLDERS, PARTNERS, TRUSTEES,
BENEFICIARIES AND OTHER AFFILIATES ANY OTHER REPRESENTATIONS OR WARRANTIES MADE
BY ITSELF OR ANY OF ITS OFFICERS, DIRECTORS, STOCKHOLDERS, PARTNERS, TRUSTEES,
BENEFICIARIES, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER
REPRESENTATIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE
TO THE OTHER OR THE OTHER'S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER
INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.
(n) Assignment. This Agreement shall not be assignable by any party and
any such assignment shall be null and void, except that it shall inure to the
benefit of and be binding upon any successor to each party by operation of law,
including by way of merger, consolidation or sale of all or substantially all of
its assets, and, in the case of the Purchasers, their respective executors,
trustees, and heirs, and any person to whom any of them shall have transferred
any of the Subject Shares or the Exchanged Shares not in violation of this
Agreement. Notwithstanding the foregoing, ATS may assign its rights and remedies
hereunder to any bank or other financial institution which has loaned funds or
otherwise extended credit to it.
(o) Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties and their permitted successors and assigns,
and nothing in this Agreement, express or implied, is intended to or shall
confer upon any person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement, except as otherwise provided in Section
6(n).
(p) Certain Definitions. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa, and the reference to
any gender shall be deemed to include all genders. References to "hereof,"
"herein" or similar terms are intended to refer to the Agreement as a whole and
not
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<PAGE>
a particular section, and references to "this Section" are intended to refer to
the entire section or article and not a particular subsection thereof.
(q) Mutual Drafting. This Agreement is the result of the joint efforts
of ATS and the Purchasers, and each provision hereof has been subject to the
mutual consultation, negotiation and agreement of the parties and there shall be
no construction against either party based on any presumption of that party's
involvement in the drafting thereof. Each of the parties is a sophisticated
legal entity or individual that was advised by experienced counsel and, to the
extent it deemed necessary, other advisors in connection with this Agreement.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
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<PAGE>
IN WITNESS WHEREOF, each of the parties hereto had caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
American Tower Systems Corporation
By: ________________________________
Name:
Title:
------------------------------------
Alan L. Box
------------------------------------
Charlton H. Buckley
Chase Equity Associates, L.P.
By Chase Capital Partners, General Partner
------------------------------------
Name:
Title:
------------------------------------
Steven B. Dodge
------------------------------------
James S. Eisenstein
------------------------------------
Arthur C. Kellar
------------------------------------
Steven J. Moskowitz
-------------------------------------
Katharine E. Stoner
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<PAGE>
-------------------------------------
Ruth Rochelle Stoner
-------------------------------------
Theodore A. Stoner
------------------------------------
Thomas H. Stoner
Thomas H. Stoner and Bessemer Trust Company,
Trustees of Ruth H. Spencer Irrevocable Trust
By:__________________________________
Name:
Title:
Bessemer Trust Company, Trustee of
Thomas H. Stoner Irrevocable Trust
By:__________________________________
Name:
Title:
Thomas and Katharine Stoner Foundation
By:__________________________________
Name:
Title:
-------------------------------------
Thomas Stoner, Jr.
Bessemer Trust Company, Trustee of
Alden Elizabeth Stoner 35 Trust
By:__________________________________
Name:
Title:
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