ý
|
Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
|
¨
|
Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
|
Delaware
|
|
65-0723837
|
(State or other jurisdiction of
Incorporation or Organization)
|
|
(I.R.S. Employer
Identification No.)
|
Title of each Class
|
|
Name of exchange on which registered
|
Common Stock, $0.01 par value
|
|
New York Stock Exchange
|
5.25% Mandatory Convertible Preferred Stock, Series A, $0.01 par value
|
|
New York Stock Exchange
|
Depositary Shares, each representing a 1/10th ownership interest in a share of 5.50% Mandatory Convertible Preferred Stock, Series B, $0.01 par value
|
|
New York Stock Exchange
|
Large accelerated filer
x
|
|
Accelerated filer
o
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|
Non-accelerated filer
o
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Smaller reporting company
o
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Page
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PART I
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|
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ITEM 1.
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ITEM 1A.
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ITEM 1B.
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ITEM 2.
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ITEM 3.
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ITEM 4.
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PART II
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ITEM 5.
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ITEM 6.
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ITEM 7.
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ITEM 7A.
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ITEM 8.
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ITEM 9.
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Page
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ITEM 9A.
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PART III
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ITEM 10.
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ITEM 11.
|
||
ITEM 12.
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ITEM 13.
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||
ITEM 14.
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PART IV
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ITEM 15.
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ITEM 1. BUSINESS
|
•
|
Long-term tenant leases with contractual rent escalations.
In general, a tenant lease has an initial non-cancellable term of ten years with multiple renewal terms, with provisions that periodically increase the rent due under the lease, typically annually, based on a fixed escalation percentage (approximately
3%
in the United States) or an inflationary index in our international markets, or a combination of both. Based upon foreign currency exchange rates and the tenant leases in place as of
December 31, 2015
, we expect to generate over
$30 billion
of non-cancellable tenant lease revenue over future periods, absent the impact of straight-line lease accounting.
|
•
|
Consistent demand for our sites.
As a result of rapidly growing usage of wireless services and the corresponding wireless industry capital spending trends in the markets we serve, we anticipate consistent demand for our communications sites. We believe that our global asset base positions us well to benefit from the increasing proliferation of advanced wireless devices and the increasing usage of high bandwidth applications on those devices. We have the ability to add new tenants and new equipment for existing tenants on our sites, which typically results in incremental revenue. Our legacy site portfolio and our established tenant base provide us with a solid platform for new business opportunities, which has historically resulted in consistent and predictable organic revenue growth.
|
•
|
High lease renewal rates.
Our tenants tend to renew leases because suitable alternative sites may not exist or be available and repositioning a site in their network may be expensive and may adversely affect the quality of their network. Historically, churn has been approximately 1% to 2% of total property revenue per year. We define churn as revenue lost when a tenant cancels or does not renew its lease or, in limited circumstances, when the lease rates on existing leases are reduced. We derive our churn rate for a given year by dividing our revenue lost on this basis by our prior year property segment revenue.
|
•
|
High operating margins.
Incremental operating costs associated with adding new tenants to an existing communications site are relatively minimal. Therefore, as tenants are added, the substantial majority of incremental revenue flows through to gross margin and operating profit. In addition, in many of our international markets, certain expenses, such as ground rent or power and fuel costs, are reimbursed and shared by our tenant base.
|
•
|
Low maintenance capital expenditures.
On average, we require relatively low amounts of annual capital expenditures to maintain our communications sites.
|
|
2015
|
|
2014
|
|
2013
|
|||
U.S.
|
66
|
%
|
|
64
|
%
|
|
65
|
%
|
Asia
|
5
|
%
|
|
6
|
%
|
|
6
|
%
|
EMEA
|
8
|
%
|
|
8
|
%
|
|
9
|
%
|
Latin America
|
19
|
%
|
|
20
|
%
|
|
18
|
%
|
•
|
U.S.:
AT&T, Verizon Wireless, Sprint and T-Mobile accounted for an aggregate of
87%
of U.S. property segment revenue.
|
•
|
Asia:
Vodafone, Idea Cellular, Airtel and Aircel accounted for an aggregate of 73% of Asia property segment revenue.
|
•
|
EMEA:
MTN Group Limited, Airtel, Cell C and Vodafone accounted for an aggregate of 82% of EMEA property segment revenue.
|
•
|
Latin America:
Telefónica, AT&T, Nextel International and Telecom Italia accounted for an aggregate of 70% of Latin America property segment revenue.
|
•
|
Managed Networks.
We own and operate DAS networks in the United States and certain international markets. We obtain rights from property owners to install and operate in-building DAS networks, and we grant rights to wireless service providers to attach their equipment to our installations. We also offer outdoor DAS networks as a complementary shared infrastructure solution for our tenants in the United States and in certain international markets. Typically, we design, build and operate our outdoor DAS networks in areas in which zoning restrictions or other barriers may prevent or delay deployment of more traditional wireless communications sites. We also hold lease rights and easement interests on rooftops capable of hosting communications equipment in locations where towers are generally not a viable solution based on area characteristics. In addition, we provide management services to property owners in the United States who elect to retain full rights to their property while simultaneously marketing the rooftop for wireless communications equipment installation. As the demand for advanced wireless devices in urban markets evolves, we continue to evaluate a variety of infrastructure solutions, including small cells, that may support our tenants’ networks in these areas.
|
•
|
Property Interests
.
We own a portfolio of property interests in the United States under carrier or other third-party communications sites, which provides recurring cash flow under complementary leasing arrangements.
|
•
|
Shared Generators
.
We have contracts with certain of our tenants in the United States pursuant to which we provide access to shared backup power generators.
|
•
|
Increase the occupancy of our existing communications real estate portfolio.
We believe that our highest returns will be achieved by leasing additional space on our existing communications sites. Increasing demand for wireless services in our served markets has resulted in significant capital spending by major wireless carriers. As a result, we anticipate consistent demand for our communications sites because they are attractively located for wireless service providers and typically have capacity available for additional tenants. In the United States, incremental carrier network activity is being driven primarily by the build-out of fourth generation (4G) networks, while in our international markets, carriers are deploying a combination of second generation (2G), third generation (3G) and 4G networks, depending on the specific market. As of
December 31, 2015
, we had a global average of approximately 1.8 tenants per tower. We believe that the majority of our towers have capacity for additional tenants and that substantially all of our towers that are currently at or near full structural capacity can be upgraded or augmented to meet future tenant demand with relatively modest capital investment. Therefore, we will continue to target our sales and marketing activities to increase the utilization and return on investment of our existing communications sites.
|
•
|
Invest in and selectively grow our communications real estate portfolio.
We seek opportunities to invest in and grow our operations through our capital programs, new site construction and acquisitions. We believe we can achieve attractive risk-adjusted returns by pursuing such investments. In addition, we seek to secure property interests under our communications sites to improve operating margins as we reduce our cash operating expense related to ground leases. A significant portion of our inorganic growth has been focused on properties with lower initial tenancy because we believe that over time, we can significantly increase tenancy levels, and therefore, drive strong returns on those assets.
|
•
|
Further improve upon our operational performance.
We continue to seek opportunities to improve our operational performance throughout the organization. This includes investing in our systems and people as we strive to improve efficiency and provide superior service to our customers. To achieve this, we intend to continue to focus on customer service, such as reducing cycle times for key functions, including lease processing and tower structural analysis.
|
•
|
Maintain a strong balance sheet.
We remain committed to disciplined financial policies, which we believe result in our ability to maintain a strong balance sheet and will support our overall strategy and focus on asset growth and operational excellence. As a result of these policies, we currently have investment grade credit ratings. We expect to continue to support these policies through, among other things, a combination of debt repayment and our continued growth. We continue to focus on maintaining a robust liquidity position and, as of
December 31, 2015
, had
$1.9 billion
of available liquidity. We believe that our investment grade credit ratings provide us consistent access to the capital markets and our liquidity provides us the ability to selectively invest in our portfolio.
|
•
|
Capital expenditure program.
We will continue to invest in and expand our existing communications real estate portfolio through our annual capital expenditure program. This includes capital expenditures associated with maintenance, increasing the capacity of our existing sites, and projects such as new site construction, land interest acquisitions and shared generator installations.
|
•
|
Acquisitions.
We intend to pursue acquisitions of communications sites in our existing or new markets where we can meet our risk-adjusted return on investment criteria. Our risk-adjusted hurdle rates consider additional risks such as the country and counter-parties involved, investment and economic climate, legal and regulatory conditions and industry risk.
|
•
|
Return excess capital to stockholders.
If we have excess capital available after funding (i) our required distributions, (ii) our capital expenditures, (iii) repayment of debt, as necessary, consistent with our long-term financial policies and (iv) anticipated future investments, including acquisition opportunities, we will seek to return such excess capital to stockholders.
|
•
|
Country analysis.
Prior to entering a new market, we conduct an extensive review of the country’s historical and projected macroeconomic fundamentals, including inflation outlook and foreign currency exchange rate trends, capital markets, tax regime and investment alternatives, and the general business, political and legal environments, including property rights and regulatory regime.
|
•
|
Wireless industry analysis.
To confirm the presence of sufficient demand to support an independent tower leasing model, we analyze the competitiveness of the country’s wireless market, such as the pricing environment, past and potential industry consolidation and the stage of its wireless network development. Characteristics that result in an attractive investment opportunity include (i) multiple competitive wireless service providers who are actively seeking to invest in deploying voice and data networks and (ii) ongoing or expected deployment of incremental spectrum from auctions that have occurred or are anticipated to occur.
|
•
|
Opportunity and counterparty analysis.
Once an investment opportunity is identified within a geographic area with an attractive wireless industry, we conduct a multifaceted opportunity and counterparty analysis. This includes evaluating (i) the type of transaction, (ii) its ability to meet our risk-adjusted return criteria given the country and the counterparties involved, including the anticipated anchor tenant and (iii) how the transaction fits within our long-term strategic objectives, including future potential investment and expansion within the region.
|
•
|
Refinancing of GTP Acquisition Partners securitization with proceeds from a private issuance of American Tower Secured Revenue Notes.
|
•
|
Completion of registered public offerings of our common and preferred stock, the net proceeds of which were used to fund a portion of the Verizon Transaction.
|
•
|
Completion of a registered public offering of senior unsecured notes due 2020 and 2025, the proceeds of which were used to repay indebtedness under our existing credit facilities.
|
•
|
U.S. wireless network investments.
According to industry data, aggregate annual wireless capital spending in the United States has averaged over $30 billion, resulting in consistent demand for our sites. Demand for our U.S. communications sites is driven by:
|
•
|
Increasing wireless data usage, which continues to incentivize wireless service providers to focus on network quality and make incremental investments in the coverage and capacity of their networks;
|
•
|
Subscriber adoption of advanced wireless data applications such as mobile Internet and video, increasingly advanced devices and the corresponding deployments and densification of advanced networks by wireless service providers to satisfy this incremental demand for high-bandwidth wireless data;
|
•
|
Deployment of newly acquired spectrum; and
|
•
|
Deployment of wireless and backhaul networks by new market entrants.
|
•
|
International (Asia, EMEA and Latin America) wireless network investments.
The wireless networks in most of our international markets are typically less advanced than those in our U.S. market with respect to the density of voice networks and the current technologies generally deployed for wireless services. Accordingly, demand for our international communications sites is primarily driven by:
|
•
|
Incumbent wireless service providers investing in existing voice networks to improve or expand their coverage and increase capacity;
|
•
|
In certain of our international markets, increasing subscriber adoption of wireless data applications, such as email, Internet and video;
|
•
|
Spectrum auctions, which result in new market entrants, as well as initial and incremental data network deployments; and
|
•
|
The increasing availability of lower cost smartphones internationally.
|
ITEM 1A.
|
RISK FACTORS
|
•
|
increased use of network sharing or mergers or consolidations among wireless service providers;
|
•
|
zoning, environmental, health, tax or other government regulations or changes in the application and enforcement thereof;
|
•
|
governmental licensing of spectrum or restricting or revoking our customers’ spectrum licenses;
|
•
|
a decrease in consumer demand for wireless services, including due to general economic conditions or disruption in the financial and credit markets;
|
•
|
the ability and willingness of wireless service providers to maintain or increase capital expenditures on network infrastructure;
|
•
|
the financial condition of wireless service providers;
|
•
|
delays or changes in the deployment of next generation wireless technologies; and
|
•
|
technological changes.
|
•
|
impairing our ability to meet one or more of the financial ratio covenants contained in our debt agreements or to generate cash sufficient to pay interest or principal due under those agreements, which could result in an acceleration of some or all of our outstanding debt and the loss of the towers securing such debt if an uncured default occurs;
|
•
|
increasing our borrowing costs if our current investment grade debt ratings decline;
|
•
|
limiting our ability to obtain additional debt or equity financing, thereby increasing our vulnerability to general adverse economic and industry conditions and placing us at a possible competitive disadvantage to less leveraged competitors and competitors that may have better access to capital resources, including with respect to acquiring assets;
|
•
|
requiring the dedication of a substantial portion of our cash flow from operations to service our debt, thereby reducing the amount of our cash flow available for other purposes, including capital expenditures, REIT distributions
an
d preferred stock dividends; and
|
•
|
limiting our flexibility in planning for, or reacting to, changes in our business and the markets in which we compete.
|
•
|
changes to existing or new tax laws or methodologies impacting our international operations, fees directed specifically at the ownership and operation of communications sites or our international acquisitions, any of which may be applied or enforced retroactively, or failure to obtain an expected tax status for which we have applied;
|
•
|
laws or regulations that tax or otherwise restrict repatriation of earnings or other funds or otherwise limit distributions of capital;
|
•
|
changes in a specific country’s or region’s political or economic conditions, including inflation or currency devaluation;
|
•
|
changes to zoning regulations or construction laws, which could be applied retroactively to our existing communications sites;
|
•
|
expropriation or governmental regulation restricting foreign ownership or requiring reversion or divestiture;
|
•
|
actions restricting or revoking our customers’ spectrum licenses or suspending or terminating business under prior licenses;
|
•
|
failure to comply with anti-bribery laws such as the Foreign Corrupt Practices Act or similar local anti-bribery laws, or Office of Foreign Assets Control requirements;
|
•
|
material site security issues;
|
•
|
significant increase in or implementation of new license surcharges on our revenue;
|
•
|
price setting or other similar laws or regulations for the sharing of passive infrastructure; and
|
•
|
uncertain or inconsistent laws, regulations, rulings or results from legal or judicial systems, which may be enforced retroactively, and delays in the judicial process.
|
•
|
we will not be allowed a deduction for distributions to stockholders in computing our taxable income;
|
•
|
we will be subject to federal and state income tax, including any applicable alternative minimum tax, on our taxable income at regular corporate tax rates; and
|
•
|
we will be disqualified from REIT tax treatment for the four taxable years immediately following the year during which we were so disqualified.
|
ITEM 1B.
|
UNRESOLVED STAFF COMMENTS
|
ITEM 2.
|
PROPERTIES
|
Country
|
|
Function
|
|
Size (approximate
square feet)
|
|
Property Interest
|
|
U.S. Offices
|
|
|
|
|
|
|
|
Boston, MA
|
|
Corporate Headquarters and American Tower International Headquarters
|
|
39,800
|
|
|
Leased
|
Boca Raton, FL
|
|
Managed Sites Headquarters
|
|
25,200
|
|
|
Leased
|
Miami, FL
|
|
Latin America Operations Center
|
|
6,300
|
|
|
Leased
|
Atlanta, GA
|
|
U.S. Tower Division Accounting Headquarters, Network Operations and Program Management Office Field Personnel
|
|
21,400
|
|
|
Leased
|
Marlborough, MA
|
|
Information Technology Headquarters
|
|
24,200
|
|
|
Leased
|
Woburn, MA
|
|
U.S. Tower Division Headquarters, Lease Administration, Site Leasing Management and Broadcast Division Headquarters
|
|
163,200
|
|
|
Owned
|
Cary, NC
|
|
U.S. Tower Division, Network Operations Center and Engineering Services Headquarters
|
|
43,400
|
|
|
Owned(1)
|
Asia Offices
|
|
|
|
|
|
|
|
Delhi, India
|
|
India Headquarters
|
|
7,200
|
|
|
Leased
|
Mumbai, India
|
|
India Operations Center
|
|
13,600
|
|
|
Leased
|
EMEA Offices
|
|
|
|
|
|
|
|
Düsseldorf, Germany
|
|
Germany Headquarters
|
|
9,100
|
|
|
Leased(2)
|
Accra, Ghana
|
|
Ghana Headquarters
|
|
18,500
|
|
|
Leased
|
Lagos, Nigeria
|
|
Nigeria Headquarters
|
|
8,500
|
|
|
Leased
|
Johannesburg, South Africa
|
|
South Africa Headquarters
|
|
16,100
|
|
|
Leased
|
Kampala, Uganda
|
|
Uganda Headquarters
|
|
8,800
|
|
|
Leased
|
Latin America Offices
|
|
|
|
|
|
|
|
Sao Paulo, Brazil
|
|
Brazil Headquarters
|
|
48,600
|
|
|
Leased
|
Santiago, Chile
|
|
Chile Headquarters
|
|
6,900
|
|
|
Leased
|
Bogota, Colombia
|
|
Colombia Headquarters
|
|
13,800
|
|
|
Leased
|
San Jose, Costa Rica
|
|
Costa Rica Headquarters
|
|
2,400
|
|
|
Leased
|
Mexico City, Mexico
|
|
Mexico Headquarters
|
|
32,700
|
|
|
Leased
|
Lima, Peru
|
|
Peru Headquarters
|
|
3,700
|
|
|
Leased
|
(1)
|
The Cary facility is approximately 48,300 square feet. Currently, our offices occupy approximately 43,400 square feet. We lease the remaining space to an unaffiliated tenant.
|
(2)
|
We lease two office spaces that together occupy an aggregate of approximately 9,100 square feet.
|
•
|
A guyed tower includes a series of cables attaching separate levels of the tower to anchor foundations in the ground and can reach heights of up to 2,000 feet. A guyed tower site for a typical broadcast tower can consist of a tract of land of up to 20 acres.
|
•
|
A self-supporting lattice tower typically tapers from the bottom up and usually has three or four legs. A lattice tower can reach heights of up to 1,000 feet. Depending on the height of the tower, a lattice tower site for a typical wireless communications tower can consist of a tract of land of 10,000 square feet for a rural site or fewer than 2,500 square feet for a metropolitan site.
|
•
|
A monopole tower is a tubular structure that is used primarily to address space constraints or aesthetic concerns. Monopoles typically have heights ranging from 50 to 200 feet. A monopole tower site used in metropolitan areas for a typical wireless communications tower can consist of a tract of land of fewer than 2,500 square feet.
|
•
|
Rooftop towers are primarily used in metropolitan areas in our Asia, EMEA and Latin America markets, where locations for traditional tower structures are unavailable. Rooftop towers typically have heights ranging from 10 to 100 feet.
|
ITEM 3.
|
LEGAL PROCEEDINGS
|
ITEM 4.
|
MINE SAFETY DISCLOSURES
|
ITEM 5.
|
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
|
2015
|
|
High
|
|
Low
|
||||
Quarter ended March 31
|
|
|
$101.88
|
|
|
|
$93.21
|
|
Quarter ended June 30
|
|
98.64
|
|
|
91.99
|
|
||
Quarter ended September 30
|
|
101.54
|
|
|
86.83
|
|
||
Quarter ended December 31
|
|
104.12
|
|
|
87.23
|
|
||
2014
|
|
High
|
|
Low
|
||||
Quarter ended March 31
|
|
|
$84.90
|
|
|
|
$78.38
|
|
Quarter ended June 30
|
|
90.73
|
|
|
80.10
|
|
||
Quarter ended September 30
|
|
99.90
|
|
|
89.05
|
|
||
Quarter ended December 31
|
|
106.31
|
|
|
90.20
|
|
Declaration Date
|
|
Payment Date
|
|
Record Date
|
|
Distribution per share
|
|
Aggregate Payment Amount (in millions) (1)
|
||||
Common Stock
|
|
|
|
|
|
|
|
|
||||
March 5, 2015
|
|
April 28, 2015
|
|
April 10, 2015
|
|
|
$0.42
|
|
|
|
$177.7
|
|
May 21, 2015
|
|
July 16, 2015
|
|
June 17, 2015
|
|
0.44
|
|
|
186.2
|
|
||
September 10, 2015
|
|
October 7, 2015
|
|
September 23, 2015
|
|
0.46
|
|
|
194.8
|
|
||
December 3, 2015
|
|
January 13, 2016
|
|
December 16, 2015
|
|
0.49
|
|
|
207.7
|
|
||
Series A Preferred Stock
|
|
|
|
|
|
|
|
|
||||
April 14, 2015
|
|
May 15, 2015
|
|
May 1, 2015
|
|
|
$1.3125
|
|
|
|
$7.9
|
|
July 15, 2015
|
|
August 17, 2015
|
|
August 1, 2015
|
|
1.3125
|
|
|
7.9
|
|
||
October 20, 2015
|
|
November 16, 2015
|
|
November 1, 2015
|
|
1.3125
|
|
|
7.9
|
|
||
Series B Preferred Stock
|
|
|
|
|
|
|
|
|
||||
April 14, 2015
|
|
May 15, 2015
|
|
May 1, 2015
|
|
|
$11.1528
|
|
|
|
$15.3
|
|
July 15, 2015
|
|
August 17, 2015
|
|
August 1, 2015
|
|
13.75
|
|
|
18.9
|
|
||
October 20, 2015
|
|
November 16, 2015
|
|
November 1, 2015
|
|
13.75
|
|
|
18.9
|
|
Declaration Date
|
|
Payment Date
|
|
Record Date
|
|
Distribution
per share |
|
Aggregate
Payment Amount (in millions) (1) |
||||
Common Stock
|
|
|
|
|
|
|
|
|
||||
March 6, 2014
|
|
April 25, 2014
|
|
April 10, 2014
|
|
|
$0.32
|
|
|
|
$126.6
|
|
May 21, 2014
|
|
July 16, 2014
|
|
June 17, 2014
|
|
0.34
|
|
|
134.6
|
|
||
September 10, 2014
|
|
October 7, 2014
|
|
September 23, 2014
|
|
0.36
|
|
|
142.7
|
|
||
December 2, 2014
|
|
January 13, 2015
|
|
December 16, 2014
|
|
0.38
|
|
|
150.7
|
|
||
Series A Preferred Stock
|
|
|
|
|
|
|
|
|
||||
May 21, 2014
|
|
August 15, 2014
|
|
August 1, 2014
|
|
|
$1.3563
|
|
|
|
$8.1
|
|
September 10, 2014
|
|
November 17, 2014
|
|
November 1, 2014
|
|
1.3125
|
|
|
7.9
|
|
||
December 2, 2014
|
|
February 16, 2015
|
|
February 1, 2015
|
|
1.3125
|
|
|
7.9
|
|
|
|
Cumulative Total Returns
|
||||||||||||||||||||||
|
|
12/10
|
|
12/11
|
|
12/12
|
|
12/13
|
|
12/14
|
|
12/15
|
||||||||||||
American Tower Corporation
|
|
$
|
100.00
|
|
|
$
|
116.91
|
|
|
$
|
152.49
|
|
|
$
|
159.80
|
|
|
$
|
200.96
|
|
|
$
|
200.95
|
|
S&P 500 Index
|
|
100.00
|
|
|
102.11
|
|
|
118.45
|
|
|
156.82
|
|
|
178.29
|
|
|
180.75
|
|
||||||
Dow Jones U.S. Telecommunications Equipment Index
|
|
100.00
|
|
|
92.10
|
|
|
101.08
|
|
|
122.75
|
|
|
141.42
|
|
|
126.14
|
|
||||||
FTSE NAREIT All Equity REITs Index
|
|
100.00
|
|
|
108.28
|
|
|
129.62
|
|
|
133.32
|
|
|
170.68
|
|
|
175.51
|
|
ITEM 6.
|
SELECTED FINANCIAL DATA
|
|
|
Year Ended December 31,
|
||||||||||||||||||
|
|
2015
|
|
2014
|
|
2013
|
|
2012
|
|
2011
|
||||||||||
|
|
(In thousands, except per share data)
|
||||||||||||||||||
Statements of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Revenues:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Property
|
|
$
|
4,680,388
|
|
|
$
|
4,006,854
|
|
|
$
|
3,287,090
|
|
|
$
|
2,803,490
|
|
|
$
|
2,386,185
|
|
Services
|
|
91,128
|
|
|
93,194
|
|
|
74,317
|
|
|
72,470
|
|
|
57,347
|
|
|||||
Total operating revenues
|
|
4,771,516
|
|
|
4,100,048
|
|
|
3,361,407
|
|
|
2,875,960
|
|
|
2,443,532
|
|
|||||
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Cost of operations (exclusive of items shown separately below)
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Property
|
|
1,275,436
|
|
|
1,056,177
|
|
|
828,742
|
|
|
686,681
|
|
|
590,272
|
|
|||||
Services
|
|
33,432
|
|
|
38,088
|
|
|
31,131
|
|
|
35,798
|
|
|
30,684
|
|
|||||
Depreciation, amortization and accretion
|
|
1,285,328
|
|
|
1,003,802
|
|
|
800,145
|
|
|
644,276
|
|
|
555,517
|
|
|||||
Selling, general, administrative and development expense
|
|
497,835
|
|
|
446,542
|
|
|
415,545
|
|
|
327,301
|
|
|
288,824
|
|
|||||
Other operating expenses
|
|
66,696
|
|
|
68,517
|
|
|
71,539
|
|
|
62,185
|
|
|
58,103
|
|
|||||
Total operating expenses
|
|
3,158,727
|
|
|
2,613,126
|
|
|
2,147,102
|
|
|
1,756,241
|
|
|
1,523,400
|
|
|||||
Operating income
|
|
1,612,789
|
|
|
1,486,922
|
|
|
1,214,305
|
|
|
1,119,719
|
|
|
920,132
|
|
|||||
Interest income, TV Azteca, net
|
|
11,209
|
|
|
10,547
|
|
|
22,235
|
|
|
14,258
|
|
|
14,214
|
|
|||||
Interest income
|
|
16,479
|
|
|
14,002
|
|
|
9,706
|
|
|
7,680
|
|
|
7,378
|
|
|||||
Interest expense
|
|
(595,949
|
)
|
|
(580,234
|
)
|
|
(458,296
|
)
|
|
(401,665
|
)
|
|
(311,854
|
)
|
|||||
Loss on retirement of long-term obligations
|
|
(79,606
|
)
|
|
(3,473
|
)
|
|
(38,701
|
)
|
|
(398
|
)
|
|
—
|
|
|||||
Other expense (1)
|
|
(134,960
|
)
|
|
(62,060
|
)
|
|
(207,500
|
)
|
|
(38,300
|
)
|
|
(122,975
|
)
|
|||||
Income from continuing operations before income taxes and income on equity method investments
|
|
829,962
|
|
|
865,704
|
|
|
541,749
|
|
|
701,294
|
|
|
506,895
|
|
|||||
Income tax provision
|
|
(157,955
|
)
|
|
(62,505
|
)
|
|
(59,541
|
)
|
|
(107,304
|
)
|
|
(125,080
|
)
|
|||||
Income on equity method investments
|
|
—
|
|
|
—
|
|
|
—
|
|
|
35
|
|
|
25
|
|
|||||
Net income
|
|
672,007
|
|
|
803,199
|
|
|
482,208
|
|
|
594,025
|
|
|
381,840
|
|
|||||
Net loss attributable to noncontrolling interest
|
|
13,067
|
|
|
21,711
|
|
|
69,125
|
|
|
43,258
|
|
|
14,622
|
|
|||||
Net income attributable to American Tower Corporation stockholders
|
|
685,074
|
|
|
824,910
|
|
|
551,333
|
|
|
637,283
|
|
|
396,462
|
|
|||||
Dividends on preferred stock
|
|
(90,163
|
)
|
|
(23,888
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Net income attributable to American Tower Corporation common stockholders
|
|
$
|
594,911
|
|
|
$
|
801,022
|
|
|
$
|
551,333
|
|
|
$
|
637,283
|
|
|
$
|
396,462
|
|
Net income per common share amounts:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Basic net income attributable to American Tower Corporation common stockholders
|
|
$
|
1.42
|
|
|
$
|
2.02
|
|
|
$
|
1.40
|
|
|
$
|
1.61
|
|
|
$
|
1.00
|
|
Diluted net income attributable to American Tower Corporation common stockholders
|
|
$
|
1.41
|
|
|
$
|
2.00
|
|
|
$
|
1.38
|
|
|
$
|
1.60
|
|
|
$
|
0.99
|
|
Weighted average common shares outstanding:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Basic
|
|
418,907
|
|
|
395,958
|
|
|
395,040
|
|
|
394,772
|
|
|
395,711
|
|
|||||
Diluted
|
|
423,015
|
|
|
400,086
|
|
|
399,146
|
|
|
399,287
|
|
|
400,195
|
|
|||||
Distribution declared per common share
|
|
$
|
1.81
|
|
|
$
|
1.40
|
|
|
$
|
1.10
|
|
|
$
|
0.90
|
|
|
$
|
0.35
|
|
Distribution declared per preferred share, Series A
|
|
$
|
3.94
|
|
|
$
|
3.98
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Distribution declared per preferred share, Series B
|
|
$
|
38.65
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Other Operating Data:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Ratio of earnings to fixed charges (2)
|
|
1.99x
|
|
|
2.11x
|
|
|
1.89x
|
|
|
2.32x
|
|
|
2.19x
|
|
|||||
Ratio of earnings to combined fixed charges and preferred stock dividends (2)
|
|
1.80x
|
|
|
2.05x
|
|
|
1.89x
|
|
|
2.32x
|
|
|
2.19x
|
|
|
|
As of December 31,
|
||||||||||||||||||
|
|
2015
|
|
2014 (3)
|
|
2013 (3)
|
|
2012 (3)
|
|
2011 (3)
|
||||||||||
|
|
(In thousands)
|
||||||||||||||||||
Balance Sheet Data: (4)
|
|
|
||||||||||||||||||
Cash and cash equivalents (including restricted cash) (5)
|
|
$
|
462,879
|
|
|
$
|
473,698
|
|
|
$
|
446,492
|
|
|
$
|
437,934
|
|
|
$
|
372,406
|
|
Property and equipment, net
|
|
9,866,424
|
|
|
7,590,112
|
|
|
7,177,728
|
|
|
5,765,856
|
|
|
4,981,722
|
|
|||||
Total assets
|
|
26,904,272
|
|
|
21,263,565
|
|
|
20,213,937
|
|
|
14,045,810
|
|
|
12,199,222
|
|
|||||
Long-term obligations, including current portion
|
|
17,119,009
|
|
|
14,540,341
|
|
|
14,408,550
|
|
|
8,709,757
|
|
|
7,193,135
|
|
|||||
Total American Tower Corporation equity
|
|
6,651,679
|
|
|
3,953,560
|
|
|
3,534,165
|
|
|
3,573,101
|
|
|
3,287,220
|
|
(1)
|
For the years ended December 31, 2015, 2014, 2013, 2012 and 2011, amount includes unrealized foreign currency losses of $71.5 million, $49.3 million, $211.7 million, $34.3 million and $131.1 million, respectively.
|
(2)
|
For the purpose of this calculation, “earnings” consists of income from continuing operations before income taxes and income on equity method investments, as well as fixed charges (excluding interest capitalized and amortization of interest capitalized). “Fixed charges” consists of interest expensed and capitalized, amortization of debt discounts, premiums and related issuance costs and the component of rental expense associated with operating leases believed by management to be representative of the interest factor thereon.
|
(3)
|
Balances have been revised to reflect debt issuance cost adjustments.
|
(4)
|
Balances have been revised to reflect purchase accounting measurement period adjustments.
|
(5)
|
As of December 31,
2015
,
2014
,
2013
,
2012
and
2011
, amount includes
$142.2 million
, $160.2 million, $152.9 million, $69.3 million, and $42.2 million, respectively, of restricted funds pledged as collateral to secure obligations and cash, the use of which is otherwise limited by contractual provisions.
|
ITEM 7.
|
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
|
|
|
Number of
Owned Towers
|
|
Number of
Operated
Towers (1)
|
|
Number of
Owned DAS Sites |
|||
Domestic:
|
|
|
|
|
|
|
|||
United States
|
|
21,854
|
|
|
18,235
|
|
|
337
|
|
Asia:
|
|
|
|
|
|
|
|||
India
|
|
15,046
|
|
|
—
|
|
|
28
|
|
EMEA:
|
|
|
|
|
|
|
|||
Germany
|
|
2,028
|
|
|
—
|
|
|
—
|
|
Ghana
|
|
2,097
|
|
|
—
|
|
|
16
|
|
Nigeria
|
|
4,716
|
|
|
—
|
|
|
—
|
|
South Africa
|
|
1,926
|
|
|
—
|
|
|
—
|
|
Uganda
|
|
1,393
|
|
|
—
|
|
|
—
|
|
EMEA total
|
|
12,160
|
|
|
—
|
|
|
16
|
|
Latin America:
|
|
|
|
|
|
|
|||
Brazil
|
|
15,758
|
|
|
2,268
|
|
|
47
|
|
Chile
|
|
1,195
|
|
|
—
|
|
|
6
|
|
Colombia
|
|
3,026
|
|
|
706
|
|
|
1
|
|
Costa Rica
|
|
483
|
|
|
—
|
|
|
—
|
|
Mexico
|
|
8,591
|
|
|
199
|
|
|
49
|
|
Peru
|
|
610
|
|
|
—
|
|
|
—
|
|
Latin America total
|
|
29,663
|
|
|
3,173
|
|
|
103
|
|
(1)
|
Approximately 97% of the operated towers are held pursuant to long-term capital leases, including those subject to purchase options.
|
•
|
Organic revenue from tenant leases attributable to sites that existed in our portfolio as of the beginning of the prior year period (“legacy sites”);
|
•
|
Contractual rent escalations on existing tenant leases, net of churn;
|
•
|
New revenue attributable to leasing additional space on our legacy sites; and
|
•
|
New revenue attributable to sites acquired or constructed since the beginning of the prior year period (“new sites”).
|
•
|
In less advanced wireless markets where initial voice and data networks are still being deployed, we expect these deployments to drive demand for our tower space as carriers seek to expand their footprints and increase the scope and density of their networks. We have established operations in many of these markets at the early stages of wireless development, which we believe will enable us to meaningfully participate in these deployments.
|
•
|
Subscribers’ use of wireless data continues to grow rapidly given increasing smartphone and other advanced device penetration, the proliferation of bandwidth-intensive applications on these devices and the continuing evolution of the mobile ecosystem. We believe carriers will be compelled to deploy additional equipment on existing networks while also rolling out more advanced wireless networks to address coverage and capacity needs resulting from this increasing wireless data usage.
|
•
|
The deployment of advanced wireless technology across existing wireless networks will provide higher speed data services and further enable fixed broadband substitution. As a result, we expect our tenants to continue deploying additional equipment across their existing networks.
|
•
|
Wireless service providers compete based on the quality of their existing wireless networks, which is driven by capacity and coverage. To maintain or improve their network performance as overall network usage increases, our tenants continue deploying additional equipment across their existing sites while also adding new cell sites. We anticipate increasing network densification over the next several years, as existing network infrastructure is anticipated to be insufficient to account for rapidly increasing levels of wireless data usage.
|
•
|
Wireless service providers continue to acquire additional spectrum, and as a result are expected to add additional sites and equipment to their network as they seek to optimize their network configuration and utilize additional spectrum.
|
New Sites (Acquired or Constructed)
|
2015
|
|
2014
|
|
2013
|
|||
U.S.
|
11,595
|
|
|
900
|
|
|
5,260
|
|
Asia
|
2,330
|
|
|
1,560
|
|
|
1,260
|
|
EMEA
|
4,910
|
|
|
190
|
|
|
485
|
|
Latin America
|
6,535
|
|
|
5,800
|
|
|
6,065
|
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Property
|
|
|
|
|
|
|
|
|
|
||||||||
U.S.
|
$
|
3,157,501
|
|
|
$
|
2,639,790
|
|
|
$
|
2,189,365
|
|
|
20
|
%
|
|
21
|
%
|
Asia
|
242,223
|
|
|
219,566
|
|
|
191,355
|
|
|
10
|
|
|
15
|
|
|||
EMEA
|
395,092
|
|
|
315,053
|
|
|
295,681
|
|
|
25
|
|
|
7
|
|
|||
Latin America
|
885,572
|
|
|
832,445
|
|
|
610,689
|
|
|
6
|
|
|
36
|
|
|||
Total property
|
4,680,388
|
|
|
4,006,854
|
|
|
3,287,090
|
|
|
17
|
|
|
22
|
|
|||
Services
|
91,128
|
|
|
93,194
|
|
|
74,317
|
|
|
(2
|
)
|
|
25
|
|
|||
Total revenues
|
$
|
4,771,516
|
|
|
$
|
4,100,048
|
|
|
$
|
3,361,407
|
|
|
16
|
%
|
|
22
|
%
|
•
|
The increase in U.S. property segment revenue was primarily attributable to growth of (i) 11% due to 11,449 new sites from the Verizon Transaction, which resulted in an increase of $296.8 million in revenue and (ii) 7% from legacy sites, including 6% from new tenant leases and amendments to existing tenant leases and 1% from contractual rent escalations, net of churn. The remaining revenue increase was attributable to approximately
1,045
new sites (excluding the Verizon Transaction) and the impact of straight-line lease accounting.
|
•
|
The increase in Asia property segment revenue was attributable to growth of (i) 11% due to approximately
3,890
new sites and (ii) 5% from legacy sites, including 7% generated from new tenant leases, partially offset by a 1% reduction in pass-through revenue due to declining fuel costs and consumption and a 1% decrease due to churn, net of contractual rent escalations. Revenue growth was partially offset by the negative impact from foreign currency translation of 6% related to fluctuations in Indian Rupee (“INR”).
|
•
|
The increase in EMEA property segment revenue was attributable to growth of (i) 37% due to approximately 5,100 new sites, including 4,716 new sites from the Airtel acquisition in Nigeria, which contributed $109.7 million in revenue and (ii) 9% from legacy sites, including 6% from contractual rent escalations, net of churn, and 4% from new tenant leases and amendments to existing tenant leases, partially offset by a 1% reduction in pass-through revenue due to declining fuel costs and consumption. Revenue growth was partially offset by a decrease of 20% attributable to the negative impact from foreign currency translation, which included, among others, 8% related to fluctuations in Ghanaian Cedi (“GHS”), 4% related to fluctuations in both South African Rand (“ZAR”) and Uganda Shilling, as well as the impact of straight-line lease accounting.
|
•
|
The increase in Latin America property segment revenue was primarily attributable to growth of (i) 26% due to approximately
12,335
new sites, including
5,483
sites acquired from TIM and (ii) 11% growth from legacy sites, including 7% generated from new tenant leases and amendments to existing tenant leases and 4% from contractual rent escalations, net of churn. The remaining revenue increase was due to the impact of straight-line lease accounting. Revenue growth was partially offset by a decrease of 32% attributable to the negative impact from foreign currency translation, which included, among others, 20% related to fluctuations in Brazilian Reais (“BRL”) and 8% related to fluctuations in Mexican Pesos (“MXN”).
|
•
|
The decrease in services segment revenue was primarily attributable to a decrease in structural engineering services.
|
•
|
The increase in U.S. property segment revenue was primarily attributable to growth of (i) 11% due to approximately 4,860 new sites, as well as managed rooftop and tower sites and land interests under third-party sites, in connection with our acquisition of MIPT, which accounted for $247.1 million of additional revenue and (ii) 9% from legacy sites, including 8% from new tenant leases and amendments to existing tenant leases and 1% from contractual rent escalations, net of churn. The remaining increase was due to approximately
1,300
new sites (excluding MIPT), partially offset by the impact of straight-line lease accounting.
|
•
|
The increase in Asia property segment revenue was attributable to growth of (i) 10% from legacy sites, including 12% from new tenant leases, partially offset by a decrease of 2% due to churn, net of contractual rent escalations and (ii) 11% due to approximately 2,820 new sites. Revenue growth was partially offset by a decrease of 5% attributable to the negative impact from foreign currency translation related to fluctuations in INR, as well as the impact of straight-line lease accounting.
|
•
|
The increase in EMEA property segment revenue was primarily attributable to growth of (i) 19% from legacy sites, including 13% from new tenant leases and amendments to existing tenant leases and 6% attributable to contractual rent escalations, net of churn and (ii) 6% due to approximately 675 new sites. The remaining revenue growth was due to the impact of straight-line lease accounting. Revenue growth was partially offset by a decrease of 19% attributable to the negative impact from foreign currency translation, which included, among others, 15% related to fluctuations in GHS.
|
•
|
The increase in Latin America property segment revenue was primarily attributable to growth of (i) 30% due to approximately 11,865 new sites (including approximately 460 sites in Costa Rica in connection with our acquisition of MIPT) and (ii) 13% from legacy sites, including 10% from new tenant leases and amendments to existing tenant leases and 3% from contractual rent escalations, net of churn. The remaining revenue increase was due to the impact of straight-line lease accounting. Revenue growth was partially offset by a decrease of 9% attributable to the negative impact from foreign currency translation, which included, among others, 5% related to fluctuations in BRL.
|
•
|
The increase in services segment revenue was primarily attributable to site acquisition, zoning and permitting services associated with certain tenants’ next generation technology network upgrade projects, including an increase in volume as a result of the additional sites acquired as part of the acquisition of MIPT.
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Property
|
|
|
|
|
|
|
|
|
|
||||||||
U.S.
|
$
|
2,479,002
|
|
|
$
|
2,124,048
|
|
|
$
|
1,783,946
|
|
|
17
|
%
|
|
19
|
%
|
Asia
|
115,349
|
|
|
97,769
|
|
|
81,710
|
|
|
18
|
|
|
20
|
|
|||
EMEA
|
231,272
|
|
|
188,339
|
|
|
174,559
|
|
|
23
|
|
|
8
|
|
|||
Latin America
|
592,152
|
|
|
552,465
|
|
|
441,345
|
|
|
7
|
|
|
25
|
|
|||
Total property
|
3,417,775
|
|
|
2,962,621
|
|
|
2,481,560
|
|
|
15
|
|
|
19
|
|
|||
Services
|
58,135
|
|
|
55,546
|
|
|
43,753
|
|
|
5
|
%
|
|
27
|
%
|
•
|
The increase in U.S. property segment gross margin was primarily attributable to growth of 8% from legacy sites and 7% due to new sites from the Verizon Transaction, primarily associated with the increase in revenue described above. The remaining gross margin growth was due to new sites (excluding the Verizon Transaction) and the impact of straight-line lease accounting.
|
•
|
The increase in Asia property segment gross margin was attributable to growth of 14% from legacy sites and 11% due to new sites, primarily associated with the increase in revenue described above. Gross margin growth was partially offset by a decrease of 6% attributable to the negative impact from foreign currency translation related to fluctuations in INR, as well as the impact of straight-line lease accounting.
|
•
|
The increase in EMEA property segment gross margin was primarily attributable to growth of 27% due to new sites from the Airtel acquisition, as well as 16% from legacy sites, primarily associated with the increase in revenue described above. The remaining gross margin growth was from new sites (excluding Airtel) and the impact of straight-line lease accounting. Gross margin growth was partially offset by a decrease of 21% attributable to the negative impact from foreign currency translation, which included, among others, 7% related to fluctuations in GHS and 5% related to fluctuations in both ZAR and the Euro.
|
•
|
The increase in Latin America property segment gross margin was primarily attributable to growth of 24% due to new sites and 11% from legacy sites, primarily associated with the increase in revenue described above. The remaining gross margin growth was due to the impact of straight-line lease accounting. Gross margin growth was partially offset
|
•
|
The increase in services segment gross margin was primarily attributable to efficiencies in our tower services.
|
•
|
The increase in U.S. property segment gross margin was primarily attributable to growth of 10% due to new sites from our acquisition of MIPT, as well as 9% from legacy sites, primarily associated with the increase in revenue as described above. The remaining gross margin growth was due to new sites (excluding MIPT), partially offset by the impact of straight-line lease accounting.
|
•
|
The increase in Asia property segment gross margin was primarily attributable to growth of 13% from legacy sites and 11% due to new sites, primarily associated with the increase in revenue described above. The remaining gross margin growth was due to the impact of straight-line lease accounting. Gross margin growth was partially offset by 5% attributable to the negative impact from foreign currency translation related to fluctuations in INR.
|
•
|
The increase in EMEA property segment gross margin was primarily attributable to growth of 19% from legacy sites and 6% due to new sites, primarily associated with the increase in revenue described above. The remaining gross margin growth was due to the impact of straight-line lease accounting. Gross margin growth was partially offset by a decrease of 18% attributable to the negative impact from foreign currency translation, which included, among others, 14% related to fluctuations in GHS.
|
•
|
The increase in Latin America property segment gross margin was primarily attributable to growth of 20% due to new sites (including MIPT) as well as 11% from legacy sites, primarily associated with the increase in revenue described above, and included the negative impact of 1% as a result of the early termination of a portion of the notes receivable with TV Azteca, which provided a positive impact to 2013 gross margin. The remaining gross margin growth was due to the impact of straight-line lease accounting. Gross margin growth was partially offset by 8% attributable to the negative impact from foreign currency translation, which included, among others, 5% related to fluctuations in BRL.
|
•
|
The increase in services segment gross margin was due to the increase in revenue as described above.
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Property
|
|
|
|
|
|
|
|
|
|
||||||||
U.S.
|
$
|
138,617
|
|
|
$
|
124,944
|
|
|
$
|
103,989
|
|
|
11
|
%
|
|
20
|
%
|
Asia
|
22,771
|
|
|
19,632
|
|
|
15,630
|
|
|
16
|
|
|
26
|
|
|||
EMEA
|
48,672
|
|
|
39,553
|
|
|
39,076
|
|
|
23
|
|
|
1
|
|
|||
Latin America
|
62,111
|
|
|
66,890
|
|
|
62,756
|
|
|
(7
|
)
|
|
7
|
|
|||
Total property
|
272,171
|
|
|
251,019
|
|
|
221,451
|
|
|
8
|
|
|
13
|
|
|||
Services
|
15,724
|
|
|
12,469
|
|
|
9,257
|
|
|
26
|
|
|
35
|
|
|||
Other (1)
|
209,940
|
|
|
183,054
|
|
|
184,837
|
|
|
15
|
|
|
(1
|
)
|
|||
Total selling, general, administrative and development expense
|
$
|
497,835
|
|
|
$
|
446,542
|
|
|
$
|
415,545
|
|
|
11
|
%
|
|
7
|
%
|
(1)
|
Certain expenses previously reflected in segment SG&A for the years ended December 31, 2014 and 2013 have been reclassified and are now reflected as Other SG&A.
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Property
|
|
|
|
|
|
|
|
|
|
||||||||
U.S.
|
$
|
2,340,385
|
|
|
$
|
1,999,104
|
|
|
$
|
1,679,957
|
|
|
17
|
%
|
|
19
|
%
|
Asia
|
92,578
|
|
|
78,137
|
|
|
66,080
|
|
|
18
|
|
|
18
|
|
|||
EMEA
|
182,600
|
|
|
148,786
|
|
|
135,483
|
|
|
23
|
|
|
10
|
|
|||
Latin America
|
530,041
|
|
|
485,575
|
|
|
378,589
|
|
|
9
|
|
|
28
|
|
|||
Total property
|
3,145,604
|
|
|
2,711,602
|
|
|
2,260,109
|
|
|
16
|
|
|
20
|
|
|||
Services
|
42,411
|
|
|
43,077
|
|
|
34,496
|
|
|
(2
|
)%
|
|
25
|
%
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Depreciation, amortization and accretion
|
$
|
1,285,328
|
|
|
$
|
1,003,802
|
|
|
$
|
800,145
|
|
|
28
|
%
|
|
25
|
%
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Other operating expenses
|
$
|
66,696
|
|
|
$
|
68,517
|
|
|
$
|
71,539
|
|
|
(3
|
)%
|
|
(4
|
)%
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Interest income, TV Azteca, net
|
$
|
11,209
|
|
|
$
|
10,547
|
|
|
$
|
22,235
|
|
|
6
|
%
|
|
(53
|
)%
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Interest expense
|
$
|
595,949
|
|
|
$
|
580,234
|
|
|
$
|
458,296
|
|
|
3
|
%
|
|
27
|
%
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Loss on retirement of long-term obligations
|
$
|
79,606
|
|
|
$
|
3,473
|
|
|
$
|
38,701
|
|
|
2,192
|
%
|
|
(91
|
)%
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Other expense
|
$
|
134,960
|
|
|
$
|
62,060
|
|
|
$
|
207,500
|
|
|
117
|
%
|
|
(70
|
)%
|
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Income tax provision
|
|
$
|
157,955
|
|
|
$
|
62,505
|
|
|
$
|
59,541
|
|
|
153
|
%
|
|
5
|
%
|
Effective tax rate
|
|
19.0
|
%
|
|
7.2
|
%
|
|
11.0
|
%
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Net income
|
|
$
|
672,007
|
|
|
$
|
803,199
|
|
|
$
|
482,208
|
|
|
(16
|
)%
|
|
67
|
%
|
Income tax provision
|
|
157,955
|
|
|
62,505
|
|
|
59,541
|
|
|
153
|
|
|
5
|
|
|||
Other expense
|
|
134,960
|
|
|
62,060
|
|
|
207,500
|
|
|
117
|
|
|
(70
|
)
|
|||
Loss on retirement of long-term obligations
|
|
79,606
|
|
|
3,473
|
|
|
38,701
|
|
|
2,192
|
|
|
(91
|
)
|
|||
Interest expense
|
|
595,949
|
|
|
580,234
|
|
|
458,296
|
|
|
3
|
|
|
27
|
|
|||
Interest income
|
|
(16,479
|
)
|
|
(14,002
|
)
|
|
(9,706
|
)
|
|
18
|
|
|
44
|
|
|||
Other operating expenses
|
|
66,696
|
|
|
68,517
|
|
|
71,539
|
|
|
(3
|
)
|
|
(4
|
)
|
|||
Depreciation, amortization and accretion
|
|
1,285,328
|
|
|
1,003,802
|
|
|
800,145
|
|
|
28
|
|
|
25
|
|
|||
Stock-based compensation expense
|
|
90,537
|
|
|
80,153
|
|
|
68,138
|
|
|
13
|
|
|
18
|
|
|||
Adjusted EBITDA
|
|
$
|
3,066,559
|
|
|
$
|
2,649,941
|
|
|
$
|
2,176,362
|
|
|
16
|
%
|
|
22
|
%
|
|
Year Ended December 31,
|
|
% Change 2015 vs 2014
|
|
% Change 2014 vs 2013
|
||||||||||||
|
2015
|
|
2014
|
|
2013
|
|
|||||||||||
Net income
|
$
|
672,007
|
|
|
$
|
803,199
|
|
|
$
|
482,208
|
|
|
(16
|
)%
|
|
67
|
%
|
Real estate related depreciation, amortization and accretion
|
1,128,340
|
|
|
878,714
|
|
|
701,292
|
|
|
28
|
|
|
25
|
|
|||
Losses from sale or disposal of real estate and real estate related impairment charges
|
29,427
|
|
|
18,160
|
|
|
32,475
|
|
|
62
|
|
|
(44
|
)
|
|||
Dividends on preferred stock
|
(90,163
|
)
|
|
(23,888
|
)
|
|
—
|
|
|
277
|
|
|
N/A
|
|
|||
Adjustments for unconsolidated affiliates and noncontrolling interest
|
(6,429
|
)
|
|
(1,815
|
)
|
|
41,000
|
|
|
(254
|
)
|
|
(104
|
)
|
|||
NAREIT FFO
|
$
|
1,733,182
|
|
|
$
|
1,674,370
|
|
|
$
|
1,256,975
|
|
|
4
|
|
|
33
|
|
Straight-line revenue
|
(154,959
|
)
|
|
(123,716
|
)
|
|
(147,664
|
)
|
|
25
|
|
|
(16
|
)
|
|||
Straight-line expense
|
56,076
|
|
|
38,378
|
|
|
29,732
|
|
|
46
|
|
|
29
|
|
|||
Stock-based compensation expense
|
90,537
|
|
|
80,153
|
|
|
68,138
|
|
|
13
|
|
|
18
|
|
|||
Non-cash portion of tax provision
|
897
|
|
|
(6,707
|
)
|
|
7,865
|
|
|
113
|
|
|
(185
|
)
|
|||
Non-real estate related depreciation, amortization and accretion
|
156,988
|
|
|
125,088
|
|
|
98,853
|
|
|
26
|
|
|
27
|
|
|||
Amortization of deferred financing costs, capitalized interest, debt discounts and premiums and long-term deferred interest charges
|
22,575
|
|
|
8,622
|
|
|
22,955
|
|
|
162
|
|
|
(62
|
)
|
|||
Other expense (1)
|
134,960
|
|
|
62,060
|
|
|
207,500
|
|
|
117
|
|
|
(70
|
)
|
|||
Loss on retirement of long-term obligations
|
79,606
|
|
|
3,473
|
|
|
38,701
|
|
|
2,192
|
|
|
(91
|
)
|
|||
Other operating expenses (2)
|
37,269
|
|
|
50,357
|
|
|
39,064
|
|
|
(26
|
)
|
|
29
|
|
|||
Capital improvement capital expenditures
|
(89,867
|
)
|
|
(75,041
|
)
|
|
(81,218
|
)
|
|
20
|
|
|
(8
|
)
|
|||
Corporate capital expenditures
|
(16,447
|
)
|
|
(24,146
|
)
|
|
(30,383
|
)
|
|
(32
|
)
|
|
(21
|
)
|
|||
Adjustments for unconsolidated affiliates and noncontrolling interest
|
6,429
|
|
|
1,815
|
|
|
(41,000
|
)
|
|
254
|
|
|
104
|
|
|||
MIPT one-time cash tax charge (3)
|
93,044
|
|
|
—
|
|
|
—
|
|
|
N/A
|
|
|
N/A
|
|
|||
AFFO
|
$
|
2,150,290
|
|
|
$
|
1,814,706
|
|
|
$
|
1,469,518
|
|
|
18
|
%
|
|
23
|
%
|
(1)
|
Primarily includes realized and unrealized losses on foreign currency exchange rate fluctuations.
|
(2)
|
Primarily includes acquisition-related costs, integration costs, losses from sale of assets and impairment charges.
|
(3)
|
As the one-time tax charge incurred in connection with the MIPT tax election is nonrecurring, we do not believe it is an indication of our operating performance and believe it is more meaningful to present AFFO excluding this impact. Accordingly, we present AFFO for the year ended December 31, 2015 before this charge.
|
•
|
The issuance of 13,750,000 depositary shares, each representing a 1/10th interest in a share of the Series B Preferred Stock, and 25,850,000 shares of common stock. We used the aggregate net proceeds of $3.78 billion to fund a portion of the Verizon Transaction.
|
•
|
The completion of registered public offerings of $750.0 million aggregate principal amount of 2.800% senior unsecured notes due 2020 (the “2.800% Notes”) and $750.0 million aggregate principal amount of 4.000% senior unsecured notes due 2025 (the “4.000% Notes”). We used the net proceeds of
$1.48 billion
to repay existing indebtedness under our multi-currency senior unsecured revolving credit facility entered into in June 2013, as amended (the “2013 Credit Facility”).
|
•
|
The receipt of incremental commitments under the 2013 Credit Facility and our senior unsecured credit facility entered into in January 2012, as amended and restated in September 2014 (the “2014 Credit Facility”), giving us the ability to borrow up to
$2.75 billion
under the 2013 Credit Facility and
$2.0 billion
under the 2014 Credit Facility.
|
•
|
The repayment of the Secured Tower Revenue Notes, Global Tower Series 2011-1, Class C, Secured Tower Revenue Notes, Global Tower Series 2011-2, Class C and Class F and Secured Tower Revenue Notes, Global Tower Series 2013-1, Class C and Class F (collectively, the “GTP AP Notes”) with proceeds from the 2015 Securitization.
|
Available under the 2013 Credit Facility
|
$
|
1,525,000
|
|
Available under the 2014 Credit Facility
|
20,000
|
|
|
Letters of credit
|
(10,624
|
)
|
|
Total available under credit facilities, net
|
1,534,376
|
|
|
Cash and cash equivalents
|
320,686
|
|
|
Total liquidity
|
$
|
1,855,062
|
|
|
2015
|
|
2014
|
|
2013
|
||||||
Net cash provided by (used for):
|
|
|
|
|
|
||||||
Operating activities
|
$
|
2,183,052
|
|
|
$
|
2,134,589
|
|
|
$
|
1,599,047
|
|
Investing activities
|
(7,741,735
|
)
|
|
(1,949,548
|
)
|
|
(5,173,337
|
)
|
|||
Financing activities
|
5,589,101
|
|
|
(134,591
|
)
|
|
3,525,565
|
|
|||
Net effect of changes in foreign currency exchange rates on cash and cash equivalents
|
(23,224
|
)
|
|
(30,534
|
)
|
|
(26,317
|
)
|
|||
Net increase (decrease) in cash and cash equivalents
|
$
|
7,194
|
|
|
$
|
19,916
|
|
|
$
|
(75,042
|
)
|
•
|
An increase of approximately
$87.8 million
in cash paid for taxes, driven primarily by the MIPT one-time cash tax charge of $93.0 million;
|
•
|
A decrease in capital contributions, tenant settlements and other prepayments of approximately $99.0 million;
|
•
|
An increase of approximately
$29.9 million
in cash paid for interest;
|
•
|
A decrease of approximately $34.9 million in termination and decommissioning fees;
|
•
|
A decrease of approximately $49.0 million in customer receipts due to timing; and
|
•
|
A decrease due to the non-recurrence of a 2014 value added tax refund of approximately $60.3 million.
|
•
|
We spent $5.059 billion for the Verizon Transaction.
|
•
|
We spent
$796.9 million
for the acquisition of 5,483 communications sites from TIM in Brazil.
|
•
|
We spent
$1.1 billion
for the acquisition of 4,716 communications sites from certain of Airtel’s subsidiaries in Nigeria.
|
•
|
We spent
$728.8 million
for capital expenditures, as follows (in millions):
|
Discretionary capital projects (1)
|
$
|
245.1
|
|
Ground lease purchases
|
140.5
|
|
|
Capital improvements and corporate expenditures
|
106.3
|
|
|
Redevelopment
|
162.1
|
|
|
Start-up capital projects
|
74.8
|
|
|
Total capital expenditures
|
$
|
728.8
|
|
(1)
|
Includes the construction of
3,235
communications sites globally and the installation of 17 shared generators domestically.
|
•
|
We completed the acquisition of 100% of the equity interests of BR Towers for a preliminary purchase price of $568.9 million, net of debt assumed and outstanding preferred stock.
|
•
|
We spent $441.7 million for the acquisition of approximately 400 communications sites in Brazil, Ghana, Mexico, Uganda and the United States, as well as to satisfy obligations related to sites acquired during the year ended December 31, 2013 in Brazil, South Africa and the United States.
|
•
|
We spent $974.4 million for capital expenditures, as follows (in millions):
|
Discretionary capital projects (1)
|
$
|
521.6
|
|
Ground lease purchases
|
133.7
|
|
|
Capital improvements and corporate expenditures
|
99.2
|
|
|
Redevelopment
|
194.4
|
|
|
Start-up capital projects
|
25.5
|
|
|
Total capital expenditures
|
$
|
974.4
|
|
(1)
|
Includes the construction of 3,133 communications sites globally and the installation of 530 shared generators domestically.
|
Discretionary capital projects (1)
|
$
|
170
|
|
to
|
$
|
200
|
|
Ground lease purchases
|
130
|
|
to
|
150
|
|
||
Capital improvements and corporate expenditures
|
120
|
|
to
|
130
|
|
||
Redevelopment
|
190
|
|
to
|
210
|
|
||
Start-up capital projects
|
90
|
|
to
|
110
|
|
||
Total capital expenditures
|
$
|
700
|
|
to
|
$
|
800
|
|
(1)
|
Includes the construction of approximately 2,500 to 3,000 communications sites globally.
|
|
Year ended December 31,
|
|||||||||
|
2015
|
|
2014
|
2013
|
||||||
Proceeds from term loan, net
|
$
|
500.0
|
|
|
$
|
—
|
|
$
|
750.0
|
|
Proceeds from issuance of senior notes, net
|
1,492.3
|
|
|
1,415.8
|
|
2,221.8
|
|
|||
Proceeds from the issuance of preferred stock, net
|
1,337.9
|
|
|
583.1
|
|
—
|
|
|||
Proceeds from issuance of securitized debt
|
875.0
|
|
|
—
|
|
1,778.5
|
|
|||
Repayment of securitized debt
|
(964.9
|
)
|
|
—
|
|
(1,750.0
|
)
|
|||
Proceeds from the issuance of common stock, net
|
2,440.3
|
|
|
—
|
|
—
|
|
|||
Repayment of senior notes
|
(1,100.0
|
)
|
|
—
|
|
—
|
|
|||
Proceeds from (repayments of) credit facilities, net
|
2,105.0
|
|
|
(841.0
|
)
|
684.0
|
|
|||
Distributions paid on common stock (1)
|
(710.9
|
)
|
|
(404.6
|
)
|
(434.7
|
)
|
(1)
|
The fourth quarter 2014 dividend was paid in January 2015.
|
•
|
$5.25
per share, or
$31.6 million
, to Series A preferred stockholders of record, including the fourth quarter dividend of
$1.3125
per share, or
$7.9 million
, and
|
•
|
$38.6528
per share, or
$53.1 million
, to Series B preferred stockholders of record, including the fourth quarter dividend of
$13.75
per share, or
$18.9 million
.
|
(1)
|
Represents anticipated repayment date; final legal maturity is March 15, 2043.
|
(2)
|
Represents anticipated repayment date; final legal maturity is March 15, 2048.
|
(3)
|
Represents anticipated repayment date; final legal maturity is June 15, 2045.
|
(4)
|
Represents anticipated repayment date; final legal maturity is June 15, 2050.
|
(5)
|
Assumed by us in connection with the acquisition of MIPT.
|
(6)
|
Secured debt assumed by us in connection with the Unison Acquisition. Anticipated repayment dates begin April 15, 2017; final legal maturity date is April 15, 2040.
|
(7)
|
Publicly issued debentures assumed in connection with our acquisition of BR Towers and denominated in BRL. The BR Towers debentures amortize through October 15, 2023.
|
(8)
|
Reflects balances owed to our joint venture partners in Ghana and Uganda. The Ghana loan is denominated in GHS and the Uganda loan is denominated in USD.
|
(9)
|
Denominated in ZAR and amortizes through December 17, 2020.
|
(10)
|
Denominated in COP and amortizes through April 24, 2021.
|
(11)
|
Denominated in BRL and matures on January 15, 2022.
|
(12)
|
Denominated in INR.
|
(13)
|
Includes payments under non-cancellable initial terms, as well as payments for certain renewal periods at our option, which we expect to renew because failure to renew could result in a loss of the applicable communications sites and related revenues from tenant leases.
|
(14)
|
Primarily represents our asset retirement obligations and excludes certain other non-current liabilities included in our consolidated balance sheet, primarily our straight-line rent liability for which cash payments are included in operating lease payments and unearned revenue that is not payable in cash.
|
(15)
|
Excludes $14.7 million of liabilities for unrecognized tax positions and $16.7 million of accrued income tax related interest and penalties included in our consolidated balance sheet as we are uncertain as to when and if the amounts may be settled. Settlement of such amounts could require the use of cash flows generated from operations. We expect the unrecognized tax benefits to change over the next 12 months if certain tax matters ultimately settle with the applicable taxing jurisdiction during this timeframe. However, based on the status of these items and the amount of uncertainty associated with the outcome and timing of audit settlements, we are currently unable to estimate the impact of the amount of such changes, if any, to previously recorded uncertain tax positions.
|
|
|
|
|
Compliance Tests For 12 Months Ended
December 31, 2015
($ in billions)
|
||
|
|
Ratio (1)
|
|
Additional Debt Capacity Under Covenants (2)
|
|
Capacity for Adjusted EBITDA Decrease Under Covenants (3)
|
Consolidated Total Leverage Ratio
|
|
Total Debt to Adjusted EBITDA
≤ 7.00:1.00 (4)
|
|
~ $5.3
|
|
~ $0.8
|
Consolidated Senior Secured Leverage Ratio
|
|
Senior Secured Debt to Adjusted EBITDA
≤ 3.00:1.00
|
|
~ $6.1 (5)
|
|
~ $2.0 (5)
|
(4)
|
The required ratio is ≤ 7.00:1.00 for the quarter ended December 31, 2015 and ≤ 6.00:1.00 thereafter. If the required ratio as of December 31, 2015 had been ≤6.00: 1.00, our additional debt capacity would have been $2.1 billion and our capacity for Adjusted EBITDA decrease would have been $0.3 billion.
|
(1)
|
Based on the net cash flow of the applicable issuer or borrower as of
December 31, 2015
and the expenses payable over the next 12 months on the 2015 Notes or the Loan, as applicable.
|
(2)
|
Once triggered, a Cash Trap DSCR condition continues to exist until the DSCR exceeds the Cash Trap DSCR for two consecutive calendar quarters.
|
(3)
|
An amortization period commences if the DSCR is equal to or below 1.15x (the “Minimum DSCR”) at the end of any calendar quarter and continues to exist until the DSCR exceeds the Minimum DSCR for two consecutive calendar quarters.
|
(4)
|
No amortization period is triggered if the outstanding principal amount of a series has not been repaid in full on the applicable anticipated repayment date. However, in such event, additional interest will accrue on the unpaid principal balance of the applicable series, and such series will begin to amortize on a monthly basis from excess cash flow.
|
(5)
|
Includes amounts distributed pursuant to the GTP AP Notes prior to the repayment on May 29, 2015.
|
(6)
|
An amortization period exists if the outstanding principal amount has not been paid in full on the applicable anticipated repayment date and continues to exist until such principal has been repaid in full.
|
•
|
Impairment of Assets—Assets Subject to Depreciation and Amortization
: We review long-lived assets for impairment at least annually or whenever events, changes in circumstances or other indicators or evidence indicate that the carrying amount of our assets may not be recoverable.
|
•
|
Impairment of Assets—Goodwill:
We review goodwill for impairment at least annually (as of December 31) or whenever events or circumstances indicate the carrying amount of an asset may not be recoverable.
|
•
|
Asset Retirement Obligations:
When required, we recognize the fair value of obligations to remove our tower assets and remediate the leased land upon which certain of our tower assets are located. Generally, the associated retirement costs are capitalized as part of the carrying amount of the related tower assets and depreciated over their estimated useful lives and the liability is accreted through the obligation’s estimated settlement date.
|
•
|
Acquisitions
: For those acquisitions that meet the definition of a business combination, we apply the acquisition method of accounting where assets acquired and liabilities assumed are recorded at fair value at the date of each acquisition, and the results of operations are included with those of the Company from the dates of the respective acquisitions. Any excess of the purchase price paid over the amounts recognized for assets acquired and liabilities assumed is recorded as goodwill. We continue to evaluate acquisitions for a period not to exceed one year after the applicable acquisition date of each transaction to determine whether any additional adjustments are needed to the allocation of the purchase price paid for the assets acquired and liabilities assumed. The fair value of the assets acquired and liabilities assumed is typically determined by using either estimates of replacement costs or discounted cash flow valuation methods. When determining the fair value of tangible assets acquired, we must estimate the cost to
|
•
|
Revenue Recognition:
Our revenue from leasing arrangements, including fixed escalation clauses present in non-cancellable lease arrangements, is reported on a straight-line basis over the term of the respective leases when collectibility is reasonably assured. Escalation clauses tied to the Consumer Price Index or other inflation-based indices, and other incentives present in lease agreements with our tenants are excluded from the straight-line calculation. Total property straight-line revenues for the years ended
December 31, 2015
,
2014
and
2013
approximated
$155.0 million
, $123.7 million and $147.7 million, respectively. Amounts billed upfront in connection with the execution of lease agreements are initially deferred and reflected in Unearned revenue in the accompanying consolidated balance sheets and recognized as revenue over the terms of the applicable leases. Amounts billed or received for services prior to being earned are deferred and reflected in Unearned revenue in the accompanying consolidated balance sheets until the criteria for recognition have been met.
|
•
|
Rent Expense:
Many of the leases underlying our tower sites have fixed rent escalations, which provide for periodic increases in the amount of ground rent payable over time. In addition, certain of our tenant leases require us to exercise available renewal options pursuant to the underlying ground lease if the tenant exercises its renewal option. We calculate straight-line ground rent expense for these leases based on the fixed non-cancellable term of the underlying ground lease plus all periods, if any, for which failure to renew the lease imposes an economic penalty to us such that renewal appears to be reasonably assured.
|
•
|
Stock-Based Compensation:
The fair value of a stock option is determined using a Black-Scholes option-pricing model that takes into account a number of assumptions at the accounting measurement date including the stock price, the exercise price, the expected life of the option, the volatility of the underlying stock, the expected distributions, and the risk-free interest rate over the expected life of the option. These assumptions are highly subjective and could significantly impact the value of the option and the compensation expense. In addition, the amount we record as stock-based compensation expense is required to include an estimate of the awards that will not fully vest and be forfeited. The fair value of both time-based and performance-based restricted stock units is based on the fair value of our common stock on the grant date. We recognize stock-based compensation in either selling, general, administrative and development expense, costs of operations or as part of the costs associated with the construction of our tower assets.
|
•
|
Income Taxes:
Accounting for income taxes requires us to estimate the timing and impact of amounts recorded in our financial statements that may be recognized differently for tax purposes. To the extent that the timing of amounts recognized for financial reporting purposes differs from the timing of recognition for tax reporting purposes, deferred tax assets or liabilities are required to be recorded. Deferred tax assets and liabilities are measured based on the rate at which we expect these items to be reflected in our tax returns, which may differ from the current rate. We do not expect to pay federal taxes on our REIT taxable income.
|
ITEM 7A.
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
Long-Term Debt
|
2016
|
|
2017
|
|
2018
|
|
2019
|
|
2020
|
|
Thereafter
|
|
Total
|
|
Fair Value
|
||||||||||||||||
Fixed Rate Debt (a)
|
$
|
27,071
|
|
|
$
|
167,814
|
|
|
$
|
1,508,788
|
|
|
$
|
1,551,089
|
|
|
$
|
1,934,643
|
|
|
$
|
6,495,394
|
|
|
$
|
11,684,799
|
|
|
$
|
11,930,026
|
|
Weighted-Average Interest Rate (a)
|
7.41
|
%
|
|
4.51
|
%
|
|
3.54
|
%
|
|
5.21
|
%
|
|
3.85
|
%
|
|
4.06
|
%
|
|
|
|
|
||||||||||
Variable Rate Debt (b)
|
$
|
23,131
|
|
|
$
|
27,722
|
|
|
$
|
28,871
|
|
|
$
|
1,332,526
|
|
|
$
|
35,383
|
|
|
$
|
4,053,667
|
|
|
$
|
5,501,300
|
|
|
$
|
5,491,298
|
|
Weighted-Average Interest Rate (b)(c)
|
8.62
|
%
|
|
8.70
|
%
|
|
8.65
|
%
|
|
2.07
|
%
|
|
8.64
|
%
|
|
1.81
|
%
|
|
|
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Interest Rate Swaps
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Notional Amount
|
$
|
3,175
|
|
|
$
|
4,763
|
|
|
$
|
4,763
|
|
|
$
|
4,763
|
|
|
$
|
6,350
|
|
|
$
|
6,350
|
|
|
$
|
30,164
|
|
|
$
|
692
|
|
Fixed Rate Debt Rate (d)
|
|
|
|
|
|
|
|
|
|
|
|
|
9.74
|
%
|
|
|
|
(a)
|
Fixed rate debt consisted of: Securities issued in the 2013 Securitization; 2012 GTP Notes assumed in connection with our acquisition of MIPT; 2015 Notes issued in the 2015 Securitization; Unison Notes assumed in connection with the Unison Acquisition; the 4.500% senior notes due 2018; the 3.40% senior notes due 2019; the 7.25% senior notes due 2019; the 2.800% Notes; the 5.050% senior notes due 2020, the 3.450% senior notes due 2021; the 5.900% senior notes due 2021; the 4.70% senior notes due 2022; the 3.50% senior notes due 2023; the 5.00% senior notes due 2024; the 4.000% Notes; the Ghana loan; and other debt including capital leases.
|
(b)
|
Variable rate debt included the Term Loan, which matures on January 29, 2021; the 2014 Credit Facility, which matures on January 29, 2021; and the 2013 Credit Facility, which matures on June 28, 2019. Variable rate debt also included: the BR Towers debentures, which amortize through October 15, 2023, the Uganda loan, which matures on June 29, 2019, the South African facility, which amortizes through December 17, 2020; the Colombian credit facility, which amortizes through April 24, 2021; and the Brazil credit facility, which matures on January 15, 2022.
|
(c)
|
Based on rates effective as of
December 31, 2015
.
|
(d)
|
Represents the weighted average fixed rate of interest based on contractual notional amount as a percentage of total notional amounts.
|
ITEM 8.
|
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
|
ITEM 9.
|
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
|
ITEM 9A.
|
CONTROLS AND PROCEDURES
|
ITEM 10.
|
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
|
James D. Taiclet, Jr.
|
|
55
|
|
|
Chairman, President and Chief Executive Officer
|
Thomas A. Bartlett
|
|
57
|
|
|
Executive Vice President and Chief Financial Officer
|
Edmund DiSanto
|
|
63
|
|
|
Executive Vice President, Chief Administrative Officer, General Counsel and Secretary
|
William H. Hess
|
|
52
|
|
|
Executive Vice President, International Operations and President, Latin America and EMEA
|
Steven C. Marshall
|
|
54
|
|
|
Executive Vice President, and President, U.S. Tower Division
|
Robert J. Meyer, Jr.
|
|
52
|
|
|
Senior Vice President, Finance and Corporate Controller
|
Amit Sharma
|
|
65
|
|
|
Executive Vice President and President, Asia
|
ITEM 11.
|
EXECUTIVE COMPENSATION
|
ITEM 12.
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
|
ITEM 13.
|
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
|
ITEM 14.
|
PRINCIPAL ACCOUNTING FEES AND SERVICES
|
ITEM 15.
|
EXHIBITS, FINANCIAL STATEMENT SCHEDULES
|
|
A
MERICAN
T
OWER
C
ORPORATION
|
|||
|
|
|
|
|
|
|
|
By:
|
/
S
/
JAMES D. TAICLET, JR.
|
|
|
|
|
James D. Taiclet, Jr.
Chairman, President and Chief Executive Officer
|
Signature
|
|
Title
|
|
Date
|
|
|
|
||
/
S
/
JAMES D. TAICLET, JR.
|
|
Chairman, President and Chief Executive Officer (Principal Executive Officer)
|
|
February 26, 2016
|
James D. Taiclet, Jr.
|
|
|
||
|
|
|
||
/
S
/
THOMAS A. BARTLETT
|
|
Executive Vice President and Chief Financial Officer (Principal Financial Officer)
|
|
February 26, 2016
|
Thomas A. Bartlett
|
|
|
||
|
|
|
||
/
S
/
ROBERT J. MEYER, JR
|
|
Senior Vice President, Finance and Corporate Controller (Principal Accounting Officer)
|
|
February 26, 2016
|
Robert J. Meyer, Jr.
|
|
|
||
|
|
|
||
/
S
/
RAYMOND P. DOLAN
|
|
Director
|
|
February 26, 2016
|
Raymond P. Dolan
|
|
|
||
|
|
|
|
|
/
S
/
ROBERT D. HORMATS
|
|
Director
|
|
February 26, 2016
|
Robert D. Hormats
|
|
|
||
|
|
|
||
/
S
/
CAROLYN F. KATZ
|
|
Director
|
|
February 26, 2016
|
Carolyn F. Katz
|
|
|
||
|
|
|
|
|
/
S
/
GUSTAVO LARA CANTU
|
|
Director
|
|
February 26, 2016
|
Gustavo Lara Cantu
|
|
|
||
|
|
|
|
|
/
S
/
CRAIG MACNAB
|
|
Director
|
|
February 26, 2016
|
Craig Macnab
|
|
|
||
|
|
|
||
/
S
/
JOANN A. REED
|
|
Director
|
|
February 26, 2016
|
JoAnn A. Reed
|
|
|
||
|
|
|
||
/
S
/
PAMELA D. A. REEVE
|
|
Director
|
|
February 26, 2016
|
Pamela D. A. Reeve
|
|
|
||
|
|
|
||
/
S
/
DAVID E. SHARBUTT
|
|
Director
|
|
February 26, 2016
|
David E. Sharbutt
|
|
|
||
|
|
|
||
/
S
/
SAMME L. THOMPSON
|
|
Director
|
|
February 26, 2016
|
Samme L. Thompson
|
|
|
|
Page
|
|
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
|
Year Ended December 31,
|
||||||||||
|
2015
|
|
2014
|
|
2013
|
||||||
REVENUES:
|
|
|
|
|
|
||||||
Property
|
$
|
4,680,388
|
|
|
$
|
4,006,854
|
|
|
$
|
3,287,090
|
|
Services
|
91,128
|
|
|
93,194
|
|
|
74,317
|
|
|||
Total operating revenues
|
4,771,516
|
|
|
4,100,048
|
|
|
3,361,407
|
|
|||
OPERATING EXPENSES:
|
|
|
|
|
|
||||||
Costs of operations (exclusive of items shown separately below):
|
|
|
|
|
|
||||||
Property (including stock-based compensation expense of $1,614, $1,397 and $977, respectively)
|
1,275,436
|
|
|
1,056,177
|
|
|
828,742
|
|
|||
Services (including stock-based compensation expense of $439, $440 and $567, respectively)
|
33,432
|
|
|
38,088
|
|
|
31,131
|
|
|||
Depreciation, amortization and accretion
|
1,285,328
|
|
|
1,003,802
|
|
|
800,145
|
|
|||
Selling, general, administrative and development expense (including stock-based compensation expense of $88,484, $78,316 and $66,594, respectively)
|
497,835
|
|
|
446,542
|
|
|
415,545
|
|
|||
Other operating expenses
|
66,696
|
|
|
68,517
|
|
|
71,539
|
|
|||
Total operating expenses
|
3,158,727
|
|
|
2,613,126
|
|
|
2,147,102
|
|
|||
OPERATING INCOME
|
1,612,789
|
|
|
1,486,922
|
|
|
1,214,305
|
|
|||
OTHER INCOME (EXPENSE):
|
|
|
|
|
|
||||||
Interest income, TV Azteca, net of interest expense of $820, $1,482 and $1,483, respectively
|
11,209
|
|
|
10,547
|
|
|
22,235
|
|
|||
Interest income
|
16,479
|
|
|
14,002
|
|
|
9,706
|
|
|||
Interest expense
|
(595,949
|
)
|
|
(580,234
|
)
|
|
(458,296
|
)
|
|||
Loss on retirement of long-term obligations
|
(79,606
|
)
|
|
(3,473
|
)
|
|
(38,701
|
)
|
|||
Other expense (including unrealized foreign currency losses of $71,473, $49,319 and $211,722, respectively)
|
(134,960
|
)
|
|
(62,060
|
)
|
|
(207,500
|
)
|
|||
Total other expense
|
(782,827
|
)
|
|
(621,218
|
)
|
|
(672,556
|
)
|
|||
INCOME FROM CONTINUING OPERATIONS BEFORE INCOME TAXES
|
829,962
|
|
|
865,704
|
|
|
541,749
|
|
|||
Income tax provision
|
(157,955
|
)
|
|
(62,505
|
)
|
|
(59,541
|
)
|
|||
NET INCOME
|
672,007
|
|
|
803,199
|
|
|
482,208
|
|
|||
Net loss attributable to noncontrolling interest
|
13,067
|
|
|
21,711
|
|
|
69,125
|
|
|||
NET INCOME ATTRIBUTABLE TO AMERICAN TOWER CORPORATION STOCKHOLDERS
|
685,074
|
|
|
824,910
|
|
|
551,333
|
|
|||
Dividends on preferred stock
|
(90,163
|
)
|
|
(23,888
|
)
|
|
—
|
|
|||
NET INCOME ATTRIBUTABLE TO AMERICAN TOWER CORPORATION COMMON STOCKHOLDERS
|
$
|
594,911
|
|
|
$
|
801,022
|
|
|
$
|
551,333
|
|
NET INCOME PER COMMON SHARE AMOUNTS:
|
|
|
|
|
|
||||||
Basic net income attributable to American Tower Corporation common stockholders
|
$
|
1.42
|
|
|
$
|
2.02
|
|
|
$
|
1.40
|
|
Diluted net income attributable to American Tower Corporation common stockholders
|
$
|
1.41
|
|
|
$
|
2.00
|
|
|
$
|
1.38
|
|
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
|
|
|
|
|
|
||||||
BASIC
|
418,907
|
|
|
395,958
|
|
|
395,040
|
|
|||
DILUTED
|
423,015
|
|
|
400,086
|
|
|
399,146
|
|
|
|
Year Ended December 31,
|
||||||||||
|
|
2015
|
|
2014
|
|
2013
|
||||||
Net income
|
|
$
|
672,007
|
|
|
$
|
803,199
|
|
|
$
|
482,208
|
|
Other comprehensive (loss) income:
|
|
|
|
|
|
|
||||||
Changes in fair value of cash flow hedges, net of tax expense (benefit) of $73, $(151) and $374, respectively
|
|
948
|
|
|
(1,931
|
)
|
|
1,107
|
|
|||
Reclassification of unrealized losses on cash flow hedges to net income, net of tax expense (benefit) of $84, $(158) and $(237), respectively
|
|
2,440
|
|
|
3,448
|
|
|
2,572
|
|
|||
Foreign currency translation adjustments, net of tax benefit of $24,857, $14,247 and $9,207, respectively
|
|
(1,078,950
|
)
|
|
(526,890
|
)
|
|
(135,079
|
)
|
|||
Other comprehensive loss
|
|
(1,075,562
|
)
|
|
(525,373
|
)
|
|
(131,400
|
)
|
|||
Comprehensive (loss) income
|
|
(403,555
|
)
|
|
277,826
|
|
|
350,808
|
|
|||
Comprehensive loss attributable to noncontrolling interest
|
|
45,854
|
|
|
64,083
|
|
|
72,652
|
|
|||
Comprehensive (loss) income attributable to American Tower Corporation stockholders
|
|
$
|
(357,701
|
)
|
|
$
|
341,909
|
|
|
$
|
423,460
|
|
|
|
Preferred Stock - Series A
|
|
Preferred Stock - Series B
|
|
Common Stock
|
|
Treasury Stock
|
|
Additional
Paid-in
Capital
|
|
Accumulated Other
Comprehensive
Loss
|
|
Distributions
in Excess of
Earnings
|
|
Noncontrolling
Interest
|
|
Total
Equity
|
||||||||||||||||||||||||||||||
|
|
Issued Shares
|
|
Amount
|
|
Issued Shares
|
|
Amount
|
|
Issued
Shares
|
|
Amount
|
|
Shares
|
|
Amount
|
|
|||||||||||||||||||||||||||||||
BALANCE, JANUARY 1, 2013
|
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
—
|
|
|
395,963,218
|
|
|
$
|
3,959
|
|
|
(872,005
|
)
|
|
$
|
(62,728
|
)
|
|
$
|
5,012,124
|
|
|
$
|
(183,347
|
)
|
|
$
|
(1,196,907
|
)
|
|
$
|
111,080
|
|
|
$
|
3,684,181
|
|
Stock-based compensation related activity
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,633,380
|
|
|
16
|
|
|
—
|
|
|
—
|
|
|
113,566
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
113,582
|
|
|||||||||
Issuance of common stock—stock purchase plan
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
77,752
|
|
|
1
|
|
|
—
|
|
|
—
|
|
|
4,926
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4,927
|
|
|||||||||
Treasury stock activity
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,938,021
|
)
|
|
(145,012
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(145,012
|
)
|
|||||||||
Net change in fair value of cash flow hedges, net of tax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
867
|
|
|
—
|
|
|
240
|
|
|
1,107
|
|
|||||||||
Reclassification of unrealized losses on cash flow hedges to net income
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,420
|
|
|
—
|
|
|
152
|
|
|
2,572
|
|
|||||||||
Foreign currency translation adjustment, net of tax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(131,160
|
)
|
|
—
|
|
|
(3,919
|
)
|
|
(135,079
|
)
|
|||||||||
Contributions from noncontrolling interest
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
18,020
|
|
|
18,020
|
|
|||||||||
Distributions to noncontrolling interest
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(573
|
)
|
|
(573
|
)
|
|||||||||
Common stock distributions declared
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(435,893
|
)
|
|
—
|
|
|
(435,893
|
)
|
|||||||||
Net income (loss)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
551,333
|
|
|
(69,125
|
)
|
|
482,208
|
|
|||||||||
BALANCE, DECEMBER 31, 2013
|
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
—
|
|
|
397,674,350
|
|
|
$
|
3,976
|
|
|
(2,810,026
|
)
|
|
$
|
(207,740
|
)
|
|
$
|
5,130,616
|
|
|
$
|
(311,220
|
)
|
|
$
|
(1,081,467
|
)
|
|
$
|
55,875
|
|
|
$
|
3,590,040
|
|
Stock-based compensation related activity
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,753,286
|
|
|
18
|
|
|
—
|
|
|
—
|
|
|
119,716
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
119,734
|
|
|||||||||
Issuance of common stock—stock purchase plan
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
81,115
|
|
|
1
|
|
|
—
|
|
|
—
|
|
|
5,717
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,718
|
|
|||||||||
Issuance of preferred stock
|
|
6,000,000
|
|
|
60
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
582,599
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
582,659
|
|
|||||||||
Changes in fair value of cash flow hedges, net of tax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,966
|
)
|
|
—
|
|
|
35
|
|
|
(1,931
|
)
|
|||||||||
Reclassification of unrealized losses on cash flow hedges to net income
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,288
|
|
|
—
|
|
|
160
|
|
|
3,448
|
|
|||||||||
Foreign currency translation adjustment, net of tax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(484,323
|
)
|
|
—
|
|
|
(42,567
|
)
|
|
(526,890
|
)
|
|||||||||
Contributions from noncontrolling interest
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
123,526
|
|
|
123,526
|
|
|||||||||
Distributions to noncontrolling interest
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(566
|
)
|
|
(566
|
)
|
|||||||||
Purchase of noncontrolling interest
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(49,862
|
)
|
|
—
|
|
|
—
|
|
|
(14,960
|
)
|
|
(64,822
|
)
|
|||||||||
Common stock distributions declared
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(556,875
|
)
|
|
—
|
|
|
(556,875
|
)
|
|||||||||
Preferred stock dividends declared
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(23,888
|
)
|
|
—
|
|
|
(23,888
|
)
|
|||||||||
Net income (loss)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
824,910
|
|
|
(21,711
|
)
|
|
803,199
|
|
|||||||||
BALANCE, DECEMBER 31, 2014
|
|
6,000,000
|
|
|
$
|
60
|
|
|
—
|
|
|
$
|
—
|
|
|
399,508,751
|
|
|
$
|
3,995
|
|
|
(2,810,026
|
)
|
|
$
|
(207,740
|
)
|
|
$
|
5,788,786
|
|
|
$
|
(794,221
|
)
|
|
$
|
(837,320
|
)
|
|
$
|
99,792
|
|
|
$
|
4,053,352
|
|
Stock-based compensation related activity
|
|
—
|
|
|
—
|
|
|
|
|
|
|
1,253,236
|
|
|
12
|
|
|
—
|
|
|
—
|
|
|
117,206
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
117,218
|
|
|||||||||||
Issuance of common stock—stock purchase plan
|
|
—
|
|
|
—
|
|
|
|
|
|
|
83,292
|
|
|
1
|
|
|
—
|
|
|
—
|
|
|
6,617
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
6,618
|
|
|||||||||||
Issuance of common stock
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
25,850,000
|
|
|
259
|
|
|
—
|
|
|
—
|
|
|
2,440,068
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,440,327
|
|
|||||||||
Issuance of preferred stock
|
|
—
|
|
|
—
|
|
|
1,375,000
|
|
|
14
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,337,932
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,337,946
|
|
|||||||||
Changes in fair value of cash flow hedges, net of tax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
901
|
|
|
—
|
|
|
47
|
|
|
948
|
|
|||||||||
Reclassification of unrealized losses on cash flow hedges to net income, net of tax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,494
|
|
|
—
|
|
|
(54
|
)
|
|
2,440
|
|
|||||||||
Foreign currency translation adjustment, net of tax
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,046,170
|
)
|
|
—
|
|
|
(32,780
|
)
|
|
(1,078,950
|
)
|
|||||||||
Contributions from noncontrolling interest
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
8,073
|
|
|
8,073
|
|
|||||||||
Distributions to noncontrolling interest
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(872
|
)
|
|
(872
|
)
|
|||||||||
Common stock distributions declared
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(769,517
|
)
|
|
—
|
|
|
(769,517
|
)
|
|||||||||
Preferred stock dividends declared
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(76,772
|
)
|
|
—
|
|
|
(76,772
|
)
|
|||||||||
Net income (loss)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
685,074
|
|
|
(13,067
|
)
|
|
672,007
|
|
|||||||||
BALANCE, DECEMBER 31, 2015
|
|
6,000,000
|
|
|
$
|
60
|
|
|
1,375,000
|
|
|
$
|
14
|
|
|
426,695,279
|
|
|
$
|
4,267
|
|
|
(2,810,026
|
)
|
|
$
|
(207,740
|
)
|
|
$
|
9,690,609
|
|
|
$
|
(1,836,996
|
)
|
|
$
|
(998,535
|
)
|
|
$
|
61,139
|
|
|
$
|
6,712,818
|
|
|
|
Year Ended December 31,
|
||||||||||
|
|
2015
|
|
2014
|
|
2013
|
||||||
CASH FLOWS FROM OPERATING ACTIVITIES
|
|
|
|
|
|
|
||||||
Net income
|
|
$
|
672,007
|
|
|
$
|
803,199
|
|
|
$
|
482,208
|
|
Adjustments to reconcile net income to cash provided by operating activities:
|
|
|
|
|
|
|
||||||
Depreciation, amortization and accretion
|
|
1,285,328
|
|
|
1,003,802
|
|
|
800,145
|
|
|||
Stock-based compensation expense
|
|
90,537
|
|
|
80,153
|
|
|
68,138
|
|
|||
Decrease (increase) in restricted cash
|
|
16,112
|
|
|
7,522
|
|
|
(52,717
|
)
|
|||
Loss on investments, unrealized foreign currency loss and other non-cash expense
|
|
142,697
|
|
|
65,881
|
|
|
222,390
|
|
|||
Impairments, net loss on sale of long-lived assets, non-cash restructuring and merger related expenses
|
|
29,852
|
|
|
26,143
|
|
|
32,672
|
|
|||
Loss on early retirement of long-term obligations
|
|
79,750
|
|
|
3,379
|
|
|
35,288
|
|
|||
Amortization of deferred financing costs, debt discounts and premiums and other non-cash interest
|
|
6,932
|
|
|
(4,870
|
)
|
|
7,596
|
|
|||
Provision for losses on (recovery of) accounts receivable
|
|
3,473
|
|
|
(1,748
|
)
|
|
(1,410
|
)
|
|||
Deferred income taxes
|
|
7,764
|
|
|
1,384
|
|
|
(29,485
|
)
|
|||
Changes in assets and liabilities, net of acquisitions:
|
|
|
|
|
|
|
||||||
Accounts receivable
|
|
(56,312
|
)
|
|
(84,529
|
)
|
|
(19,080
|
)
|
|||
Prepaid and other assets
|
|
(91,113
|
)
|
|
(1,437
|
)
|
|
(96,038
|
)
|
|||
Deferred rent asset
|
|
(154,959
|
)
|
|
(122,230
|
)
|
|
(145,689
|
)
|
|||
Accounts payable and accrued expenses
|
|
95,858
|
|
|
34,711
|
|
|
83,746
|
|
|||
Accrued interest
|
|
(15,641
|
)
|
|
45,514
|
|
|
51,076
|
|
|||
Unearned revenue
|
|
12,945
|
|
|
218,393
|
|
|
108,487
|
|
|||
Deferred rent liability
|
|
56,076
|
|
|
38,378
|
|
|
30,246
|
|
|||
Other non-current liabilities
|
|
1,746
|
|
|
20,944
|
|
|
21,474
|
|
|||
Cash provided by operating activities
|
|
2,183,052
|
|
|
2,134,589
|
|
|
1,599,047
|
|
|||
CASH FLOWS FROM INVESTING ACTIVITIES
|
|
|
|
|
|
|
||||||
Payments for purchase of property and equipment and construction activities
|
|
(728,753
|
)
|
|
(974,404
|
)
|
|
(724,532
|
)
|
|||
Payments for acquisitions, net of cash acquired
|
|
(1,961,056
|
)
|
|
(1,010,637
|
)
|
|
(4,461,764
|
)
|
|||
Payment for Verizon transaction
|
|
(5,059,462
|
)
|
|
—
|
|
|
—
|
|
|||
Proceeds from sale of assets, net of cash
|
|
—
|
|
|
15,464
|
|
|
—
|
|
|||
Proceeds from sales of short-term investments and other non-current assets
|
|
1,032,320
|
|
|
1,434,831
|
|
|
421,714
|
|
|||
Payments for short-term investments
|
|
(1,022,816
|
)
|
|
(1,395,316
|
)
|
|
(427,267
|
)
|
|||
Deposits, restricted cash and other
|
|
(1,968
|
)
|
|
(19,486
|
)
|
|
18,512
|
|
|||
Cash used for investing activities
|
|
(7,741,735
|
)
|
|
(1,949,548
|
)
|
|
(5,173,337
|
)
|
|||
CASH FLOWS FROM FINANCING ACTIVITIES
|
|
|
|
|
|
|
||||||
Proceeds from short-term borrowings, net
|
|
9,043
|
|
|
—
|
|
|
8,191
|
|
|||
Borrowings under credit facilities
|
|
6,126,618
|
|
|
2,187,000
|
|
|
3,507,000
|
|
|||
Proceeds from issuance of senior notes, net
|
|
1,492,298
|
|
|
1,415,844
|
|
|
2,221,792
|
|
|||
Proceeds from term loan
|
|
500,000
|
|
|
—
|
|
|
1,500,000
|
|
|||
Proceeds from other long-term borrowings
|
|
54,549
|
|
|
102,070
|
|
|
402,688
|
|
|||
Proceeds from issuance of securities in securitization transaction
|
|
875,000
|
|
|
—
|
|
|
1,778,496
|
|
|||
Repayments of notes payable, credit facilities, term loan, senior notes and capital leases
|
|
(6,393,405
|
)
|
|
(3,903,144
|
)
|
|
(5,337,339
|
)
|
|||
Contributions from noncontrolling interest holders, net
|
|
7,201
|
|
|
9,098
|
|
|
17,447
|
|
|||
Purchases of common stock
|
|
—
|
|
|
—
|
|
|
(145,012
|
)
|
|||
Proceeds from stock options and stock purchase plan
|
|
50,716
|
|
|
62,276
|
|
|
45,496
|
|
|||
Distributions paid on common stock
|
|
(710,852
|
)
|
|
(404,631
|
)
|
|
(434,687
|
)
|
|||
Distributions paid on preferred stock
|
|
(84,647
|
)
|
|
(16,013
|
)
|
|
—
|
|
|||
Proceeds from the issuance of common stock, net
|
|
2,440,327
|
|
|
—
|
|
|
—
|
|
|||
Proceeds from the issuance of preferred stock, net
|
|
1,337,946
|
|
|
583,105
|
|
|
—
|
|
|||
Purchase of preferred stock assumed in acquisition
|
|
—
|
|
|
(59,111
|
)
|
|
—
|
|
|||
Payment for early retirement of long-term obligations
|
|
(85,672
|
)
|
|
(11,593
|
)
|
|
(29,234
|
)
|
|||
Deferred financing costs and other financing activities
|
|
(30,021
|
)
|
|
(34,670
|
)
|
|
(9,273
|
)
|
|||
Purchase of noncontrolling interest
|
|
—
|
|
|
(64,822
|
)
|
|
—
|
|
|||
Cash provided by (used for) financing activities
|
|
5,589,101
|
|
|
(134,591
|
)
|
|
3,525,565
|
|
|||
Net effect of changes in foreign currency exchange rates on cash and cash equivalents
|
|
(23,224
|
)
|
|
(30,534
|
)
|
|
(26,317
|
)
|
|||
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
|
|
7,194
|
|
|
19,916
|
|
|
(75,042
|
)
|
|||
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR
|
|
313,492
|
|
|
293,576
|
|
|
368,618
|
|
|||
CASH AND CASH EQUIVALENTS, END OF YEAR
|
|
$
|
320,686
|
|
|
$
|
313,492
|
|
|
$
|
293,576
|
|
|
2015
|
|
2014
|
|
2013
|
||||||
Balance as of January 1
|
$
|
17,306
|
|
|
$
|
19,895
|
|
|
$
|
20,406
|
|
Current year increases
|
19,878
|
|
|
8,243
|
|
|
7,025
|
|
|||
Write-offs, net of recoveries and other
|
(14,088
|
)
|
|
(10,832
|
)
|
|
(7,536
|
)
|
|||
Balance as of December 31
|
$
|
23,096
|
|
|
$
|
17,306
|
|
|
$
|
19,895
|
|
|
2015
|
|
2014 (1)
|
||||
Prepaid operating ground leases
|
$
|
128,542
|
|
|
$
|
88,053
|
|
Prepaid income tax
|
45,056
|
|
|
34,512
|
|
||
Unbilled receivables
|
34,173
|
|
|
25,352
|
|
||
Prepaid assets
|
32,892
|
|
|
23,848
|
|
||
Value added tax and other consumption tax receivables
|
30,239
|
|
|
23,228
|
|
||
Other miscellaneous current assets
|
35,333
|
|
|
69,800
|
|
||
Balance
|
$
|
306,235
|
|
|
$
|
264,793
|
|
|
Estimated
Useful Lives (years) (1)
|
|
2015
|
|
2014 (2)
|
||||
Towers
|
Up to 20
|
|
$
|
10,726,656
|
|
|
$
|
8,265,732
|
|
Equipment
|
2 - 15
|
|
1,095,906
|
|
|
995,667
|
|
||
Buildings and improvements
|
3 - 32
|
|
607,661
|
|
|
617,064
|
|
||
Land and improvements (3)
|
Up to 20
|
|
1,728,115
|
|
|
1,565,871
|
|
||
Construction-in-progress
|
|
|
238,960
|
|
|
214,760
|
|
||
Total
|
|
|
14,397,298
|
|
|
11,659,094
|
|
||
Less accumulated depreciation
|
|
|
(4,530,874
|
)
|
|
(4,068,982
|
)
|
||
Property and equipment, net
|
|
|
$
|
9,866,424
|
|
|
$
|
7,590,112
|
|
(1)
|
Assets on leased land are depreciated over the shorter of the estimated useful life of the asset or the term of the corresponding ground lease taking into consideration lease renewal options and residual value.
|
(2)
|
December 31, 2014
balances have been revised to reflect purchase accounting measurement period adjustments.
|
(3)
|
Estimated useful lives apply to land improvements only.
|
|
|
Property
|
|
Services
|
|
Total
|
||||||||||||||||||
|
|
U.S.
|
|
Asia
|
|
EMEA
|
|
Latin America
|
|
|||||||||||||||
Balance as of January 1, 2014
|
|
$
|
3,293,899
|
|
|
$
|
182,114
|
|
|
$
|
90,035
|
|
|
$
|
286,754
|
|
|
$
|
2,000
|
|
|
$
|
3,854,802
|
|
Additions (1)
|
|
62,197
|
|
|
—
|
|
|
40
|
|
|
170,068
|
|
|
—
|
|
|
232,305
|
|
||||||
Effect of foreign currency translation
|
|
—
|
|
|
(3,593
|
)
|
|
(11,428
|
)
|
|
(36,259
|
)
|
|
—
|
|
|
(51,280
|
)
|
||||||
Other (2)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(3,641
|
)
|
|
(12
|
)
|
|
(3,653
|
)
|
||||||
Balance as of December 31, 2014 (1)
|
|
$
|
3,356,096
|
|
|
$
|
178,521
|
|
|
$
|
78,647
|
|
|
$
|
416,922
|
|
|
$
|
1,988
|
|
|
$
|
4,032,174
|
|
Additions
|
|
23,067
|
|
|
610
|
|
|
68,663
|
|
|
122,345
|
|
|
—
|
|
|
214,685
|
|
||||||
Effect of foreign currency translation
|
|
—
|
|
|
(8,412
|
)
|
|
(14,740
|
)
|
|
(131,902
|
)
|
|
—
|
|
|
(155,054
|
)
|
||||||
Balance as of December 31, 2015
|
|
$
|
3,379,163
|
|
|
$
|
170,719
|
|
|
$
|
132,570
|
|
|
$
|
407,365
|
|
|
$
|
1,988
|
|
|
$
|
4,091,805
|
|
(1)
|
Balances have been revised to reflect purchase accounting measurement period adjustments.
|
(2)
|
Other represents the goodwill associated with the Company’s operations in Panama and the Company’s third-party structural analysis business. Both businesses were sold during the year ended December 31, 2014 (see note 11).
|
|
|
|
As of December 31, 2015
|
|
As of December 31, 2014 (1)
|
|||||||||||||||||||||
|
Estimated Useful
Lives
|
|
Gross
Carrying
Value
|
|
Accumulated
Amortization
|
|
Net Book
Value
|
|
Gross
Carrying
Value
|
|
Accumulated
Amortization
|
|
Net Book
Value
|
|||||||||||||
|
(years)
|
|
(in thousands)
|
|||||||||||||||||||||||
Acquired network location intangibles (2)
|
Up to 20
|
|
|
$
|
3,980,281
|
|
|
$
|
(1,052,393
|
)
|
|
$
|
2,927,888
|
|
|
$
|
2,513,788
|
|
|
$
|
(901,903
|
)
|
|
$
|
1,611,885
|
|
Acquired customer-related intangibles
|
15-20
|
|
|
8,640,554
|
|
|
(1,763,853
|
)
|
|
6,876,701
|
|
|
6,594,469
|
|
|
(1,429,572
|
)
|
|
5,164,897
|
|
||||||
Acquired licenses and other intangibles
|
3-20
|
|
|
28,293
|
|
|
(5,486
|
)
|
|
22,807
|
|
|
38,443
|
|
|
(3,514
|
)
|
|
34,929
|
|
||||||
Economic Rights, TV Azteca
|
70
|
|
|
21,688
|
|
|
(11,208
|
)
|
|
10,480
|
|
|
25,522
|
|
|
(12,960
|
)
|
|
12,562
|
|
||||||
Total other intangible assets
|
|
|
$
|
12,670,816
|
|
|
$
|
(2,832,940
|
)
|
|
$
|
9,837,876
|
|
|
$
|
9,172,222
|
|
|
$
|
(2,347,949
|
)
|
|
$
|
6,824,273
|
|
(1)
|
December 31,
2014
balances have been revised to reflect purchase accounting measurement period adjustments.
|
(2)
|
Acquired network location intangibles are amortized over the shorter of the term of the corresponding ground lease taking into consideration lease renewal options and residual value or up to
20
years, as the Company considers these intangibles to be directly related to the tower assets.
|
|
2015
|
|
2014 (1)
|
||||
Long-term prepaid ground rent
|
$
|
388,790
|
|
|
$
|
311,502
|
|
Notes receivable
|
83,658
|
|
|
87,515
|
|
||
Other miscellaneous assets
|
260,455
|
|
|
176,229
|
|
||
Balance
|
$
|
732,903
|
|
|
$
|
575,246
|
|
|
|
Year Ended December 31,
|
||||||||||
|
|
2015
|
|
2014
|
|
2013
|
||||||
|
|
|
|
|
|
|
||||||
Acquisition and merger related expenses (1)
|
|
$
|
18,799
|
|
|
$
|
26,969
|
|
|
$
|
36,172
|
|
Integration costs
|
|
$
|
18,097
|
|
|
$
|
13,057
|
|
|
$
|
1,424
|
|
(1)
|
Acquisition and merger related expenses for the year ended
December 31, 2015
does not reflect transaction costs related to the Verizon Transaction, as these costs have been capitalized as part of the assets’ fair value.
|
Cash consideration for sites under the Master Prepaid Lease
|
|
$
|
4,959,006
|
|
Capitalized transaction costs
|
|
8,037
|
|
|
Total consideration for sites under the Master Prepaid Lease
|
|
4,967,043
|
|
|
Cash consideration for acquired sites
|
|
99,000
|
|
|
Total consideration for the Verizon Transaction (1)
|
|
$
|
5,066,043
|
|
Current assets
|
|
$
|
14,132
|
|
Non-current assets
|
|
53,339
|
|
|
Property and equipment
|
|
2,094,678
|
|
|
Intangible assets (1):
|
|
|
||
Customer-related intangible assets
|
|
1,886,443
|
|
|
Network location intangible assets
|
|
1,186,428
|
|
|
Current liabilities
|
|
(31,012
|
)
|
|
Other non-current liabilities (2)
|
|
(236,965
|
)
|
|
Fair value of consideration transferred
|
|
$
|
4,967,043
|
|
|
|
EMEA
|
|
Latin America
|
|
Other
|
||||||
|
|
Airtel
|
|
TIM
|
|
|||||||
Current assets
|
|
$
|
15,828
|
|
|
$
|
—
|
|
|
$
|
1,113
|
|
Non-current assets
|
|
69,277
|
|
|
—
|
|
|
995
|
|
|||
Property and equipment
|
|
415,246
|
|
|
275,630
|
|
|
42,716
|
|
|||
Intangible assets (1):
|
|
|
|
|
|
|
||||||
Customer-related intangible assets
|
|
231,788
|
|
|
361,822
|
|
|
63,001
|
|
|||
Network location intangible assets
|
|
328,334
|
|
|
115,562
|
|
|
37,691
|
|
|||
Current liabilities
|
|
(4,246
|
)
|
|
(3,192
|
)
|
|
(624
|
)
|
|||
Other non-current liabilities
|
|
(12,534
|
)
|
|
(74,966
|
)
|
|
(4,028
|
)
|
|||
Net assets acquired
|
|
1,043,693
|
|
|
674,856
|
|
|
140,864
|
|
|||
Goodwill (2)
|
|
68,663
|
|
|
122,011
|
|
|
24,011
|
|
|||
Fair value of net assets acquired
|
|
1,112,356
|
|
|
796,867
|
|
|
164,875
|
|
|||
Debt assumed
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Purchase Price
|
|
$
|
1,112,356
|
|
|
$
|
796,867
|
|
|
$
|
164,875
|
|
(2)
|
Goodwill was allocated to the Company’s property segments. The Company expects goodwill recorded in its U.S. and Asia property segments will be deductible for local tax purposes. The Company expects goodwill recorded in its Europe, Middle East and Africa (“EMEA”) property segment will not be deductible for local tax purposes and goodwill recorded in its Latin America property segment will be deductible in certain jurisdictions for local tax purposes.
|
|
|
Preliminary Allocation
|
|
Final Allocation (1)
|
||||||||||||||||||||
|
|
U.S.
|
|
Latin America
|
|
Other
|
|
U.S.
|
|
Latin America
|
|
Other
|
||||||||||||
|
|
Richland
|
|
BR Towers
|
|
|
Richland
|
|
BR Towers
|
|
||||||||||||||
Current assets
|
|
$
|
8,583
|
|
|
$
|
31,832
|
|
|
$
|
7,869
|
|
|
$
|
8,583
|
|
|
$
|
31,568
|
|
|
$
|
7,404
|
|
Non-current assets
|
|
—
|
|
|
9,135
|
|
|
1,521
|
|
|
—
|
|
|
9,365
|
|
|
2,562
|
|
||||||
Property and equipment
|
|
185,777
|
|
|
141,422
|
|
|
70,638
|
|
|
154,899
|
|
|
135,916
|
|
|
70,317
|
|
||||||
Intangible assets (2):
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Customer-related intangible assets
|
|
169,452
|
|
|
495,279
|
|
|
110,207
|
|
|
186,455
|
|
|
495,151
|
|
|
108,707
|
|
||||||
Network location intangible assets
|
|
1,700
|
|
|
136,233
|
|
|
50,199
|
|
|
3,409
|
|
|
135,549
|
|
|
49,199
|
|
||||||
Other intangible assets
|
|
—
|
|
|
37,664
|
|
|
—
|
|
|
—
|
|
|
33,095
|
|
|
—
|
|
||||||
Current liabilities
|
|
(3,635
|
)
|
|
(23,930
|
)
|
|
(2,860
|
)
|
|
(3,635
|
)
|
|
(24,012
|
)
|
|
(2,860
|
)
|
||||||
Other non-current liabilities
|
|
(2,922
|
)
|
|
(101,508
|
)
|
|
(7,938
|
)
|
|
(2,922
|
)
|
|
(101,814
|
)
|
|
(7,938
|
)
|
||||||
Net assets acquired
|
|
358,955
|
|
|
726,127
|
|
|
229,636
|
|
|
346,789
|
|
|
714,818
|
|
|
227,391
|
|
||||||
Goodwill (3)
|
|
32,423
|
|
|
164,955
|
|
|
19,835
|
|
|
44,128
|
|
|
166,097
|
|
|
22,080
|
|
||||||
Fair value of net assets acquired
|
|
391,378
|
|
|
891,082
|
|
|
249,471
|
|
|
390,917
|
|
|
880,915
|
|
|
249,471
|
|
||||||
Debt assumed (4)
|
|
(201,999
|
)
|
|
(261,136
|
)
|
|
—
|
|
|
(201,999
|
)
|
|
(261,136
|
)
|
|
—
|
|
||||||
Preferred stock outstanding
|
|
—
|
|
|
(61,056
|
)
|
|
—
|
|
|
—
|
|
|
(61,056
|
)
|
|
—
|
|
||||||
Purchase Price
|
|
$
|
189,379
|
|
|
$
|
568,890
|
|
|
$
|
249,471
|
|
|
$
|
188,918
|
|
|
$
|
558,723
|
|
|
$
|
249,471
|
|
(1)
|
The allocation of the purchase price was finalized during the year ended
December 31, 2015
.
|
(2)
|
Customer-related intangible assets and network location intangible assets are amortized on a straight-line basis over periods of up to
20 years
. Other intangible assets are amortized on a straight-line basis over the life of the lease, which is a period of
11 years
.
|
(3)
|
Goodwill was allocated to the Company’s property operating segments, as applicable, and the Company expects goodwill recorded will be deductible for local tax purposes except for goodwill associated with BR Towers, where goodwill is expected to be partially deductible.
|
(4)
|
Assumed BR Towers debt approximated fair value at the date of acquisition and included
$11.5 million
of current indebtedness. Assumed Richland debt included
$196.5 million
of Richland’s indebtedness and a fair value adjustment of
$5.5 million
. The fair value adjustments were based primarily on reported market values using Level 2 inputs.
|
|
|
Year Ended December 31,
|
||||||
|
|
2015
|
|
2014
|
||||
Pro forma revenues
|
|
$
|
5,034,746
|
|
|
$
|
5,000,208
|
|
Pro forma net income attributable to American Tower Corporation common stockholders
|
|
$
|
564,579
|
|
|
$
|
587,999
|
|
Pro forma net income per common share amounts:
|
|
|
|
|
||||
Basic net income attributable to American Tower Corporation common stockholders
|
|
$
|
1.33
|
|
|
$
|
1.39
|
|
Diluted net income attributable to American Tower Corporation common stockholders
|
|
$
|
1.32
|
|
|
$
|
1.38
|
|
|
|
|
|
|
|
Year Ended December 31, 2015
|
||||||||||||||
|
|
Maximum
potential value (1)
|
|
Estimated value at
December 31, 2015 (2)
|
|
Additions (3)
|
|
Settlements
|
|
Change in Fair Value
|
||||||||||
Colombia
|
|
$
|
22,444
|
|
|
$
|
9,829
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
(5,011
|
)
|
Costa Rica
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,898
|
)
|
|
—
|
|
|||||
Ghana
|
|
569
|
|
|
569
|
|
|
—
|
|
|
—
|
|
|
99
|
|
|||||
India
|
|
1,164
|
|
|
163
|
|
|
315
|
|
|
(139
|
)
|
|
—
|
|
|||||
United States
|
|
1,875
|
|
|
1,875
|
|
|
1,311
|
|
|
(5,906
|
)
|
|
131
|
|
|||||
Total
|
|
$
|
26,052
|
|
|
$
|
12,436
|
|
|
$
|
1,626
|
|
|
$
|
(7,943
|
)
|
|
$
|
(4,781
|
)
|
(1)
|
The maximum potential value is based on exchange rates at
December 31, 2015
. The minimum value could be zero.
|
(2)
|
Estimate is determined using a probability weighted average of expected outcomes as of
December 31, 2015
.
|
(3)
|
Based on preliminary acquisition accounting upon closing of certain acquisitions during the year ended
December 31, 2015
.
|
|
2015
|
|
2014 (1)
|
||||
Accrued property and real estate taxes
|
$
|
75,827
|
|
|
$
|
61,206
|
|
Payroll and related withholdings
|
62,334
|
|
|
57,110
|
|
||
Accrued rent
|
54,732
|
|
|
34,074
|
|
||
Accrued construction costs
|
19,857
|
|
|
46,024
|
|
||
Other accrued expenses
|
303,663
|
|
|
219,422
|
|
||
Balance
|
$
|
516,413
|
|
|
$
|
417,836
|
|
|
2015
|
|
2014 (1)
|
|
Contractual Interest Rate (2)
|
|
Maturity Date (2)
|
|||||
Series 2013-1A Securities (3)
|
$
|
497,478
|
|
|
$
|
496,314
|
|
|
1.551
|
%
|
|
March 15, 2018
|
Series 2013-2A Securities (4)
|
1,288,689
|
|
|
1,287,110
|
|
|
3.070
|
%
|
|
March 15, 2023
|
||
Series 2015-1 Notes (5)
|
346,262
|
|
|
—
|
|
|
2.350
|
%
|
|
June 15, 2020
|
||
Series 2015-2 Notes (6)
|
518,776
|
|
|
—
|
|
|
3.482
|
%
|
|
June 16, 2025
|
||
GTP AP Notes (7)
|
—
|
|
|
973,397
|
|
|
N/A
|
|
|
N/A
|
||
2012 GTP Notes (7)(8)
|
281,902
|
|
|
290,586
|
|
|
3.721% - 7.358%
|
|
|
Various
|
||
Unison Notes (9)
|
201,930
|
|
|
203,683
|
|
|
5.349% - 9.522%
|
|
|
Various
|
||
BR Towers Debentures (10)
|
85,219
|
|
|
118,688
|
|
|
7.400
|
%
|
|
October 15, 2023
|
||
Shareholder loans (11)
|
145,540
|
|
|
137,655
|
|
|
Various
|
|
|
Various
|
||
South African Facility (12)
|
53,175
|
|
|
73,156
|
|
|
8.575
|
%
|
|
December 17, 2020
|
||
Colombian Credit Facility (13)
|
59,640
|
|
|
82,501
|
|
|
9.853
|
%
|
|
April 24, 2021
|
||
Brazil Credit Facility (14)
|
21,868
|
|
|
—
|
|
|
Various
|
|
|
January 15, 2022
|
||
Indian Working Capital Facility (15)
|
8,752
|
|
|
—
|
|
|
9.700
|
%
|
|
January 31, 2016
|
||
Mexican Loan
|
—
|
|
|
263,426
|
|
|
N/A
|
|
|
N/A
|
||
BR Towers Credit Facility
|
—
|
|
|
16,389
|
|
|
N/A
|
|
|
N/A
|
||
Total American Tower subsidiary debt
|
3,509,231
|
|
|
3,942,905
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|
|||||
2013 Credit Facility (16)
|
1,225,000
|
|
|
—
|
|
|
1.652
|
%
|
|
June 28, 2019
|
||
Term Loan (16)
|
1,993,601
|
|
|
1,495,284
|
|
|
1.680
|
%
|
|
January 29, 2021
|
||
2014 Credit Facility (16)
|
1,980,000
|
|
|
1,100,000
|
|
|
1.680
|
%
|
|
January 29, 2021
|
||
4.625% Notes
|
—
|
|
|
599,720
|
|
|
N/A
|
|
|
N/A
|
||
7.000% Notes
|
—
|
|
|
497,750
|
|
|
N/A
|
|
|
N/A
|
||
4.500% Notes
|
997,693
|
|
|
996,571
|
|
|
4.500
|
%
|
|
January 15, 2018
|
||
3.40% Notes
|
999,769
|
|
|
999,607
|
|
|
3.400
|
%
|
|
February 15, 2019
|
||
7.25% Notes
|
296,242
|
|
|
295,229
|
|
|
7.250
|
%
|
|
May 15, 2019
|
||
2.800% Notes
|
743,557
|
|
|
—
|
|
|
2.800
|
%
|
|
June 1, 2020
|
||
5.050% Notes
|
697,216
|
|
|
696,560
|
|
|
5.050
|
%
|
|
September 1, 2020
|
||
3.450% Notes
|
642,786
|
|
|
641,579
|
|
|
3.450
|
%
|
|
September 15, 2021
|
||
5.900% Notes
|
497,188
|
|
|
496,715
|
|
|
5.900
|
%
|
|
November 1, 2021
|
||
4.70% Notes
|
695,374
|
|
|
694,694
|
|
|
4.700
|
%
|
|
March 15, 2022
|
||
3.50% Notes
|
987,966
|
|
|
986,389
|
|
|
3.500
|
%
|
|
January 31, 2023
|
||
5.00% Notes
|
1,003,453
|
|
|
1,003,628
|
|
|
5.000
|
%
|
|
February 15, 2024
|
||
4.000% Notes
|
739,057
|
|
|
—
|
|
|
4.000
|
%
|
|
June 1, 2025
|
||
Total American Tower Corporation debt
|
13,498,902
|
|
|
10,503,726
|
|
|
|
|
|
|||
Other debt, including capital lease obligations
|
110,876
|
|
|
93,710
|
|
|
|
|
|
|||
Total
|
17,119,009
|
|
|
14,540,341
|
|
|
|
|
|
|||
Less current portion long-term obligations
|
(50,202
|
)
|
|
(897,386
|
)
|
|
|
|
|
|||
Long-term obligations
|
$
|
17,068,807
|
|
|
$
|
13,642,955
|
|
|
|
|
|
(1)
|
December 31, 2014 balances have been revised to reflect debt issuance costs as a direct deduction from the carrying amounts, with the exception of debt issuance costs associated with the 2013 Credit Facility and the 2014 Credit Facility (as defined below) which are reflected in Notes receivable and other
|
(2)
|
Represents the interest rate or maturity date as of December 31, 2015 and does not reflect the impact of interest rate swap agreements.
|
(3)
|
Maturity date reflects the anticipated repayment date; final legal maturity is March 15, 2043.
|
(4)
|
Maturity date reflects the anticipated repayment date; final legal maturity is March 15, 2048.
|
(5)
|
Maturity date reflects the anticipated repayment date; final legal maturity is June 15, 2045.
|
(6)
|
Maturity date reflects the anticipated repayment date; final legal maturity is June 15, 2050.
|
(7)
|
Secured debt assumed in connection with the acquisition of MIP Tower Holdings LLC (“MIPT”).
|
(8)
|
Anticipated repayment dates begin March 15, 2017.
|
(9)
|
Secured debt assumed in connection with the acquisition of certain legal entities holding a portfolio of property interests from Unison Holdings, LLC and Unison Site Management II, L.L.C. (together, “Unison”). Anticipated repayment dates begin April 15, 2017; final legal maturity date is April 15, 2040.
|
(10)
|
Publicly issued debentures assumed in connection with the acquisition of BR Towers and denominated in BRL. Debt accrues interest at a variable rate.
|
(11)
|
Reflects balances owed to the Company’s joint venture partners in Ghana and Uganda. The Ghana loan is denominated in Ghanaian Cedi (“GHS”) and the Uganda loan is denominated in U.S. Dollars (“USD”). The Uganda loan accrues interest at a variable rate.
|
(12)
|
Denominated in South African Rand (“ZAR”). Debt accrues interest at a variable rate.
|
(13)
|
Denominated in Colombian Pesos (“COP”). Debt accrues interest at a variable rate.
|
(14)
|
Denominated in BRL. Debt accrues interest at variable rate.
|
(15)
|
Denominated in INR. This agreement provides that the maturity date may be extended for additional 30-day periods.
|
(16)
|
Debt accrues interest at a variable rate.
|
|
2015
|
|
2014
|
|
Contractual Interest Rate
|
|
Maturity Date
|
|||||
Ghana loan (1)
|
$
|
70,314
|
|
|
$
|
68,651
|
|
|
21.87
|
%
|
|
December 31, 2019
|
Uganda loan (2)(3)
|
75,226
|
|
|
69,004
|
|
|
6.066
|
%
|
|
June 29, 2019
|
(1)
|
Denominated in GHS. As of December 31, 2015, the aggregate principal amount outstanding under the Ghana loan was
267.5 million
GHS, which included
46.7 million
GHS (
$12.3 million
) of interest which was capitalized during the year ended December 31, 2015.
|
(2)
|
Interest rate as of December 31, 2015. Interest accrues at a variable rate.
|
(3)
|
Includes
$6.3 million
of interest which was capitalized during the year ended December 31, 2015.
|
|
Amounts Outstanding (BRL)
|
|
Amounts Outstanding (USD at December 31, 2015)
|
|
Maximum Borrowing Amount (BRL)
|
|
Maximum Borrowing Amount (USD at December 31, 2015)
|
|
Contractual Interest Rate
|
|||||||
Tranche A
|
23.4
|
|
|
$
|
6.0
|
|
|
34.8
|
|
|
$
|
8.9
|
|
|
TJLP + 4.25%
|
|
Tranche B
|
24.5
|
|
|
$
|
6.3
|
|
|
34.8
|
|
|
$
|
8.9
|
|
|
SELIC + 4.25%
|
|
Tranche C
|
37.5
|
|
|
$
|
9.6
|
|
|
200.0
|
|
|
$
|
51.2
|
|
|
6.00
|
%
|
Tranche D
|
—
|
|
|
$
|
—
|
|
|
1.4
|
|
|
$
|
0.4
|
|
|
TJLP
|
|
(3)
|
The original issue date for the
3.40%
Notes and the
5.00%
Notes was August 19, 2013. The issue date for the reopened
3.40%
Notes and the reopened
5.00%
Notes was January 10, 2014.
|
Year Ending December 31,
|
|
||
2016
|
$
|
50,202
|
|
2017
|
195,536
|
|
|
2018
|
1,537,659
|
|
|
2019
|
2,883,615
|
|
|
2020
|
1,970,026
|
|
|
Thereafter
|
10,549,061
|
|
|
|
|
||
Total cash obligations
|
17,186,099
|
|
|
Unamortized discounts, premiums and debt issuance costs, net
|
(67,090
|
)
|
|
|
|
||
Balance as of December 31, 2015
|
$
|
17,119,009
|
|
|
|
|
2015
|
|
2014 (1)
|
||||
Unearned revenue
|
$
|
451,844
|
|
|
$
|
415,809
|
|
Deferred rent liability
|
348,532
|
|
|
303,442
|
|
||
Other miscellaneous liabilities
|
265,306
|
|
|
309,436
|
|
||
Balance
|
$
|
1,065,682
|
|
|
$
|
1,028,687
|
|
(1)
|
December 31, 2014
balances have been revised to reflect purchase accounting measurement period adjustments.
|
|
2015
|
|
2014
|
||||
Beginning balance as of January 1,
|
$
|
609,035
|
|
|
$
|
549,548
|
|
Additions
|
277,982
|
|
|
52,623
|
|
||
Accretion expense
|
55,592
|
|
|
40,325
|
|
||
Revisions in estimates (1)
|
(83,636
|
)
|
|
(32,311
|
)
|
||
Settlements
|
(2,037
|
)
|
|
(1,150
|
)
|
||
Balance as of December 31,
|
$
|
856,936
|
|
|
$
|
609,035
|
|
(1)
|
Revisions in estimates include the negative impact of
$81.7 million
and
$38.5 million
of foreign currency translation for the years ended December 31, 2015 and 2014, respectively.
|
|
Level 1
|
Quoted prices in active markets for identical assets or liabilities that the Company has the ability to access at the measurement date.
|
|
|
|
|
Level 2
|
Observable inputs other than Level 1 prices, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.
|
|
|
|
|
Level 3
|
Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.
|
|
|
December 31, 2015
|
|
December 31, 2014
|
||||||||||||||||||||||||||
|
|
Fair Value Measurements Using
|
|
Assets/Liabilities
at Fair Value
|
|
Fair Value Measurements Using
|
|
Assets/Liabilities
at Fair Value |
||||||||||||||||||||||
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
||||||||||||||||
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Short-term investments (1)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
$
|
6,302
|
|
|
—
|
|
|
$
|
6,302
|
|
||||
Interest rate swap agreements
|
|
—
|
|
|
$
|
692
|
|
|
—
|
|
|
$
|
692
|
|
|
—
|
|
|
$
|
88
|
|
|
—
|
|
|
$
|
88
|
|
||
Embedded derivative in lease agreement
|
|
—
|
|
|
—
|
|
|
$
|
14,176
|
|
|
$
|
14,176
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Acquisition-related contingent consideration
|
|
—
|
|
|
—
|
|
|
$
|
12,436
|
|
|
$
|
12,436
|
|
|
—
|
|
|
—
|
|
|
$
|
28,524
|
|
|
$
|
28,524
|
|
||
Interest rate swap agreements
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
$
|
647
|
|
|
—
|
|
|
$
|
647
|
|
|
2015 (1)
|
|
2014 (2)
|
||||||
|
Local
|
USD
|
|
Local
|
USD
|
||||
South Africa (ZAR)
|
|
|
|
|
|
||||
Notional
|
—
|
|
—
|
|
|
440,614
|
|
38,080
|
|
Fair Value
|
—
|
|
—
|
|
|
1,016
|
|
88
|
|
Colombia (COP)
|
|
|
|
|
|
||||
Notional
|
95,000,000
|
|
30,164
|
|
|
100,000,000
|
|
41,798
|
|
Fair Value
|
2,179,374
|
|
692
|
|
|
(1,548,688
|
)
|
(647
|
)
|
(1)
|
As of December 31, 2015, the interest rate swap agreement in Colombia was included in Notes receivable and other non-current assets on the consolidated balance sheet.
|
(2)
|
As of December 31, 2014, the interest rate swap agreement in Colombia was included in Other non-current liabilities on the consolidated balance sheet and the interest rate swap agreements in South Africa were included in Notes receivable and other non-current assets on the consolidated balance sheet.
|
|
2015
|
|
2014
|
||||
Balance as of January 1
|
$
|
28,524
|
|
|
$
|
31,890
|
|
Additions
|
1,626
|
|
|
6,412
|
|
||
Settlements
|
(7,943
|
)
|
|
(3,889
|
)
|
||
Change in fair value
|
(4,781
|
)
|
|
(225
|
)
|
||
Foreign currency translation adjustment
|
(4,990
|
)
|
|
(4,934
|
)
|
||
Other (1)
|
—
|
|
|
(730
|
)
|
||
Balance as of December 31
|
$
|
12,436
|
|
|
$
|
28,524
|
|
(1)
|
In connection with the sale of operations in Panama in September 2014, the buyer assumed the Company’s potential obligations related to additional purchase price consideration.
|
|
2015
|
|
2014
|
|
2013
|
||||||
Current:
|
|
|
|
|
|
||||||
Federal
|
$
|
(73,930
|
)
|
|
$
|
(2,390
|
)
|
|
$
|
(30,322
|
)
|
State
|
(21,216
|
)
|
|
(797
|
)
|
|
(13,731
|
)
|
|||
Foreign
|
(55,045
|
)
|
|
(57,934
|
)
|
|
(44,973
|
)
|
|||
Deferred:
|
|
|
|
|
|
||||||
Federal
|
9,131
|
|
|
(4,180
|
)
|
|
(16,318
|
)
|
|||
State
|
8
|
|
|
(973
|
)
|
|
(5,139
|
)
|
|||
Foreign
|
(16,903
|
)
|
|
3,769
|
|
|
50,942
|
|
|||
Income tax provision
|
$
|
(157,955
|
)
|
|
$
|
(62,505
|
)
|
|
$
|
(59,541
|
)
|
|
2015
|
|
2014
|
|
2013
|
|||
Statutory tax rate
|
35
|
%
|
|
35
|
%
|
|
35
|
%
|
Tax adjustment related to REIT (1)
|
(35
|
)
|
|
(35
|
)
|
|
(35
|
)
|
State taxes, net of federal benefit
|
—
|
|
|
1
|
|
|
3
|
|
Foreign taxes
|
3
|
|
|
2
|
|
|
(5
|
)
|
Foreign withholding taxes
|
3
|
|
|
3
|
|
|
6
|
|
Domestic TRS restructuring
|
—
|
|
|
—
|
|
|
4
|
|
Change in tax law
|
2
|
|
|
—
|
|
|
—
|
|
MIPT tax election (2)
|
11
|
|
|
—
|
|
|
—
|
|
Other
|
—
|
|
|
1
|
|
|
3
|
|
Effective tax rate
|
19
|
%
|
|
7
|
%
|
|
11
|
%
|
|
2015
|
|
2014
|
|
2013
|
||||||
United States
|
$
|
785,201
|
|
|
$
|
857,457
|
|
|
$
|
766,772
|
|
Foreign
|
44,761
|
|
|
8,247
|
|
|
(225,023
|
)
|
|||
Total
|
$
|
829,962
|
|
|
$
|
865,704
|
|
|
$
|
541,749
|
|
|
2015 (1)
|
|
2014 (2)
|
||||
Current assets:
|
|
|
|
||||
Allowances, accruals and other items not currently deductible
|
$
|
—
|
|
|
$
|
19,893
|
|
Current deferred liabilities
|
—
|
|
|
(2,799
|
)
|
||
Subtotal
|
—
|
|
|
17,094
|
|
||
Valuation allowance
|
—
|
|
|
(3,094
|
)
|
||
Net current deferred tax assets
|
$
|
—
|
|
|
$
|
14,000
|
|
Non-current items:
|
|
|
|
||||
Assets:
|
|
|
|
||||
Net operating loss carryforwards
|
277,977
|
|
|
242,788
|
|
||
Accrued asset retirement obligations
|
92,295
|
|
|
103,975
|
|
||
Stock-based compensation
|
3,889
|
|
|
693
|
|
||
Unearned revenue
|
25,654
|
|
|
18,947
|
|
||
Unrealized loss on foreign currency
|
37,440
|
|
|
15,952
|
|
||
Items not currently deductible and other
|
31,432
|
|
|
22,142
|
|
||
Liabilities:
|
|
|
|
||||
Depreciation and amortization
|
(194,230
|
)
|
|
(131,678
|
)
|
||
Deferred rent
|
(20,720
|
)
|
|
(18,355
|
)
|
||
Other
|
(11,077
|
)
|
|
(1,791
|
)
|
||
Subtotal
|
242,660
|
|
|
252,673
|
|
||
Valuation allowance
|
(136,952
|
)
|
|
(138,147
|
)
|
||
Net non-current deferred tax assets
|
$
|
105,708
|
|
|
$
|
114,526
|
|
|
|
2015
|
|
2014
|
|
2013
|
||||||
Balance as of January 1,
|
|
$
|
141,241
|
|
|
$
|
136,006
|
|
|
$
|
95,558
|
|
Additions (1)
|
|
19,512
|
|
|
40,124
|
|
|
48,411
|
|
|||
Reversals
|
|
—
|
|
|
(10,769
|
)
|
|
—
|
|
|||
Foreign currency translation
|
|
(23,801
|
)
|
|
(24,120
|
)
|
|
(7,963
|
)
|
|||
Balance as of December 31,
|
|
$
|
136,952
|
|
|
$
|
141,241
|
|
|
$
|
136,006
|
|
Years ended December 31,
|
Federal
|
|
State
|
|
Foreign
|
||||||
2016 to 2020
|
$
|
—
|
|
|
$
|
79,928
|
|
|
$
|
14,727
|
|
2021 to 2025
|
—
|
|
|
281,061
|
|
|
195,694
|
|
|||
2026 to 2030
|
51,596
|
|
|
188,030
|
|
|
—
|
|
|||
2031 to 2035
|
23,670
|
|
|
10,853
|
|
|
—
|
|
|||
Indefinite carryforward
|
—
|
|
|
—
|
|
|
695,052
|
|
|||
Total
|
$
|
75,266
|
|
|
$
|
559,872
|
|
|
$
|
905,473
|
|
|
2015
|
|
2014
|
|
2013
|
||||||
Balance at January 1
|
$
|
31,947
|
|
|
$
|
32,545
|
|
|
$
|
34,337
|
|
Additions based on tax positions related to the current year
|
5,042
|
|
|
4,187
|
|
|
1,427
|
|
|||
Additions for tax positions of prior years
|
—
|
|
|
3,780
|
|
|
—
|
|
|||
Reductions for tax positions of prior years
|
—
|
|
|
—
|
|
|
(320
|
)
|
|||
Foreign currency
|
(5,371
|
)
|
|
(3,216
|
)
|
|
(1,681
|
)
|
|||
Reduction as a result of the lapse of statute of limitations and effective settlements
|
(3,504
|
)
|
|
(5,349
|
)
|
|
(1,218
|
)
|
|||
Balance at December 31
|
$
|
28,114
|
|
|
$
|
31,947
|
|
|
$
|
32,545
|
|
|
2015
|
|
2014
|
|
2013
|
Range of risk-free interest rate
|
1.32% - 1.62%
|
|
1.46% - 1.74%
|
|
0.75% - 1.42%
|
Weighted average risk-free interest rate
|
1.61%
|
|
1.64%
|
|
0.91%
|
Expected life of stock options
|
4.5 years
|
|
4.5 years
|
|
4.4 years
|
Range of expected volatility of the underlying stock price
|
21.09% - 21.24%
|
|
21.94% - 23.35%
|
|
24.43% - 36.09%
|
Weighted average expected volatility of underlying stock price
|
21.09%
|
|
23.08%
|
|
33.37%
|
Range of expected annual dividend yield
|
1.50% - 1.85%
|
|
1.50%
|
|
1.50%
|
|
|
Options
|
|
Weighted
Average
Exercise Price
|
|
Weighted
Average
Remaining
Life (Years)
|
|
Aggregate
Intrinsic Value
(in millions)
|
|||||
Outstanding as of January 1, 2015
|
|
6,508,435
|
|
|
|
$62.14
|
|
|
|
|
|
||
Granted
|
|
2,059,600
|
|
|
94.43
|
|
|
|
|
|
|||
Exercised
|
|
(779,615
|
)
|
|
56.56
|
|
|
|
|
|
|||
Forfeited
|
|
(105,226
|
)
|
|
82.47
|
|
|
|
|
|
|||
Expired
|
|
(2,375
|
)
|
|
23.74
|
|
|
|
|
|
|||
Outstanding as of December 31, 2015
|
|
7,680,819
|
|
|
|
$71.10
|
|
|
6.72
|
|
|
$198.6
|
|
|
|
|
|
|
|
|
|
|
|||||
Exercisable as of December 31, 2015
|
|
3,549,709
|
|
|
|
$54.13
|
|
|
4.76
|
|
|
$152.0
|
|
Vested or expected to vest as of December 31, 2015
|
|
7,674,324
|
|
|
|
$71.08
|
|
|
6.72
|
|
|
$198.6
|
|
Options Outstanding
|
|
Options Exercisable
|
||||||||||||||
Outstanding
Number of
Options
|
|
Range of Exercise
Price Per Share
|
|
Weighted
Average Exercise
Price Per Share
|
|
Weighted Average
Remaining Life
(Years)
|
|
Options
Exercisable
|
|
Weighted
Average Exercise
Price Per Share
|
||||||
2,064,426
|
|
|
$25.43 - $50.78
|
|
|
$40.73
|
|
|
3.21
|
|
2,064,426
|
|
|
|
$40.73
|
|
852,265
|
|
|
51.03 - 74.06
|
|
61.88
|
|
|
6.16
|
|
578,340
|
|
|
61.43
|
|
||
1,091,181
|
|
|
76.90 - 79.45
|
|
76.94
|
|
|
7.17
|
|
467,735
|
|
|
76.92
|
|
||
1,707,519
|
|
|
81.18 - 94.23
|
|
81.63
|
|
|
8.21
|
|
376,025
|
|
|
81.35
|
|
||
1,965,428
|
|
|
94.57 - 99.67
|
|
94.60
|
|
|
9.12
|
|
63,183
|
|
|
94.57
|
|
||
7,680,819
|
|
|
$25.43 - $99.67
|
|
|
$71.10
|
|
|
6.72
|
|
3,549,709
|
|
|
|
$54.13
|
|
|
RSUs
|
|
Weighted Average Grant Date Fair Value
|
|
PSUs (1)
|
|
Weighted Average Grant Date Fair Value
|
||||||
Outstanding as of January 1, 2015
|
1,758,817
|
|
|
|
$73.80
|
|
|
—
|
|
|
|
$—
|
|
Granted
|
715,379
|
|
|
94.55
|
|
|
33,377
|
|
|
94.57
|
|
||
Vested
|
(703,955
|
)
|
|
69.24
|
|
|
—
|
|
|
—
|
|
||
Forfeited
|
(113,248
|
)
|
|
82.20
|
|
|
—
|
|
|
—
|
|
||
Outstanding as of December 31, 2015
|
1,656,993
|
|
|
|
$84.12
|
|
|
33,377
|
|
|
|
$94.57
|
|
Expected to vest, net of estimated forfeitures, as of December 31, 2015
|
1,578,040
|
|
|
|
$83.87
|
|
|
33,377
|
|
|
|
$94.57
|
|
(1)
|
Represents the target number of shares issuable at the end of the three-year performance cycle attributable to the first year’s performance period and incremental shares issuable based on exceeding the performance metric for the first year’s performance period.
|
|
|
For the year ended December 31,
|
|||||||||||||||||||
|
|
2015
|
|
2014 (1)
|
|
2013 (1)
|
|||||||||||||||
|
|
Per Share
|
|
%
|
|
Per Share
|
|
%
|
|
Per Share
|
|
%
|
|||||||||
Common Stock
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
Ordinary dividend
|
$
|
1.2694
|
|
|
70.13
|
%
|
|
$
|
1.4000
|
|
|
100.00
|
%
|
|
$
|
1.1000
|
|
|
100.00
|
%
|
|
Capital gains distribution
|
0.5406
|
|
|
29.87
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
|
Total
|
$
|
1.8100
|
|
|
100.00
|
%
|
|
$
|
1.4000
|
|
|
100.00
|
%
|
|
$
|
1.1000
|
|
|
100.00
|
%
|
Series A Preferred Stock
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
Ordinary dividend
|
$
|
3.6818
|
|
(2)
|
70.13
|
%
|
|
$
|
2.6688
|
|
|
100.00
|
%
|
|
$
|
—
|
|
|
—
|
%
|
|
Capital gains distribution
|
1.5682
|
|
|
29.87
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
|
Total
|
$
|
5.2500
|
|
|
100.00
|
%
|
|
$
|
2.6688
|
|
|
100.00
|
%
|
|
$
|
—
|
|
|
—
|
%
|
Series B Preferred Stock (3)
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
Ordinary dividend
|
$
|
2.7107
|
|
|
70.13
|
%
|
|
$
|
—
|
|
|
—
|
%
|
|
$
|
—
|
|
|
—
|
%
|
|
Capital gains distribution
|
1.1546
|
|
|
29.87
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
|
Total
|
$
|
3.8653
|
|
|
100.00
|
%
|
|
$
|
—
|
|
|
—
|
%
|
|
$
|
—
|
|
|
—
|
%
|
(1)
|
The Company had no Series A Preferred Stock outstanding during the year ended December 31, 2013 and no Series B Preferred Stock outstanding during the years ended December 31, 2014 and 2013.
|
(2)
|
Includes dividend declared on December 2, 2014 of
$1.3125
per share, payable on February 16, 2015 to preferred stockholders of record at the close of business on February 1, 2015.
|
(3)
|
Represents the tax treatment on dividends per depositary share, each of which represents a 1/10th interest in a share of Series B Preferred Stock.
|
|
2015
|
|
2014
|
|
2013
|
||||||
Net income attributable to American Tower Corporation stockholders
|
$
|
685,074
|
|
|
$
|
824,910
|
|
|
$
|
551,333
|
|
Dividends on preferred stock
|
(90,163
|
)
|
|
(23,888
|
)
|
|
—
|
|
|||
Net income attributable to American Tower Corporation common stockholders
|
594,911
|
|
|
801,022
|
|
|
551,333
|
|
|||
Basic weighted average common shares outstanding
|
418,907
|
|
|
395,958
|
|
|
395,040
|
|
|||
Dilutive securities
|
4,108
|
|
|
4,128
|
|
|
4,106
|
|
|||
Diluted weighted average common shares outstanding
|
423,015
|
|
|
400,086
|
|
|
399,146
|
|
|||
Basic net income attributable to American Tower Corporation common stockholders per common share
|
$
|
1.42
|
|
|
$
|
2.02
|
|
|
$
|
1.40
|
|
Diluted net income attributable to American Tower Corporation common stockholders per common share
|
$
|
1.41
|
|
|
$
|
2.00
|
|
|
$
|
1.38
|
|
|
2015
|
|
2014
|
|
2013
|
|||
Restricted stock awards
|
—
|
|
|
5
|
|
|
—
|
|
Stock options
|
1,606
|
|
|
1,290
|
|
|
1,161
|
|
Preferred stock
|
15,408
|
|
|
4,303
|
|
|
—
|
|
Year Ending December 31,
|
|
||
2016
|
$
|
21
|
|
2017
|
18
|
|
|
2018
|
17
|
|
|
2019
|
15
|
|
|
2020
|
12
|
|
|
Thereafter
|
173
|
|
|
Total minimum lease payments
|
256
|
|
|
Less amounts representing interest
|
(143
|
)
|
|
Present value of capital lease obligations
|
$
|
113
|
|
|
2015
|
|
2014
|
|
2013
|
||||||
Supplemental cash flow information:
|
|
|
|
|
|
||||||
Cash paid for interest
|
$
|
577,952
|
|
|
$
|
548,089
|
|
|
$
|
397,366
|
|
Cash paid for income taxes (net of refunds of $7,053, $8,476 and $19,701, respectively)
|
157,058
|
|
|
69,212
|
|
|
51,676
|
|
|||
Non-cash investing and financing activities:
|
|
|
|
|
|
||||||
Increase in accounts payable and accrued expenses for purchases of property and equipment and construction activities
|
2,780
|
|
|
1,121
|
|
|
9,147
|
|
|||
Purchases of property and equipment under capital leases
|
36,851
|
|
|
36,486
|
|
|
27,416
|
|
|||
Fair value of debt assumed through acquisitions
|
—
|
|
|
463,135
|
|
|
1,576,186
|
|
|||
Settlement of accounts receivable related to acquisitions
|
899
|
|
|
31,849
|
|
|
—
|
|
|||
Conversion of third-party debt to equity
|
—
|
|
|
111,181
|
|
|
—
|
|
•
|
U.S.: property operations in the United States;
|
•
|
Asia: property operations in India;
|
•
|
EMEA: property operations in Germany, Ghana, Nigeria, South Africa and Uganda; and
|
•
|
Latin America: property operations in Brazil, Chile, Colombia, Costa Rica, Mexico and Peru.
|
|
|
Property
|
Total
Property
|
|
Services
|
|
Other
|
|
Total
|
|||||||||||||||||||||||
Year ended December 31, 2015
|
|
U.S.
|
|
Asia
|
|
EMEA
|
|
Latin America
|
|
|||||||||||||||||||||||
|
|
(in thousands)
|
||||||||||||||||||||||||||||||
Segment revenues
|
|
$
|
3,157,501
|
|
|
$
|
242,223
|
|
|
$
|
395,092
|
|
|
$
|
885,572
|
|
|
$
|
4,680,388
|
|
|
$
|
91,128
|
|
|
|
|
$
|
4,771,516
|
|
||
Segment operating expenses (1)
|
|
678,499
|
|
|
126,874
|
|
|
163,820
|
|
|
304,629
|
|
|
1,273,822
|
|
|
32,993
|
|
|
|
|
1,306,815
|
|
|||||||||
Interest income, TV Azteca, net
|
|
—
|
|
|
—
|
|
|
—
|
|
|
11,209
|
|
|
11,209
|
|
|
—
|
|
|
|
|
11,209
|
|
|||||||||
Segment gross margin
|
|
2,479,002
|
|
|
115,349
|
|
|
231,272
|
|
|
592,152
|
|
|
3,417,775
|
|
|
58,135
|
|
|
|
|
3,475,910
|
|
|||||||||
Segment selling, general, administrative and development expense (1)
|
|
138,617
|
|
|
22,771
|
|
|
48,672
|
|
|
62,111
|
|
|
272,171
|
|
|
15,724
|
|
|
|
|
287,895
|
|
|||||||||
Segment operating profit
|
|
$
|
2,340,385
|
|
|
$
|
92,578
|
|
|
$
|
182,600
|
|
|
$
|
530,041
|
|
|
$
|
3,145,604
|
|
|
$
|
42,411
|
|
|
|
|
$
|
3,188,015
|
|
||
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
90,537
|
|
|
90,537
|
|
|||||||||||||
Other selling, general, administrative and development expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
121,456
|
|
|
121,456
|
|
||||||||||||||
Depreciation, amortization and accretion
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,285,328
|
|
|
1,285,328
|
|
||||||||||||||
Other expense (2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
860,732
|
|
|
860,732
|
|
||||||||||||||
Income from continuing operations before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
829,962
|
|
||||||||||||||
Capital expenditures
|
|
$
|
367,663
|
|
|
$
|
75,407
|
|
|
$
|
66,625
|
|
|
$
|
201,806
|
|
|
$
|
711,501
|
|
|
$
|
—
|
|
|
$
|
17,252
|
|
|
$
|
728,753
|
|
(1)
|
Segment operating expenses and segment selling, general, administrative and development expenses exclude stock-based compensation expense of
$2.1 million
and
$88.5 million
, respectively.
|
(2)
|
Primarily includes interest expense.
|
|
|
Property
|
|
Total
Property
|
|
Services
|
|
Other
|
|
Total
|
||||||||||||||||||||||
Year ended December 31, 2014
|
|
U.S.
|
|
Asia
|
|
EMEA
|
|
Latin America
|
|
|||||||||||||||||||||||
|
|
(in thousands)
|
||||||||||||||||||||||||||||||
Segment revenues
|
|
$
|
2,639,790
|
|
|
$
|
219,566
|
|
|
$
|
315,053
|
|
|
$
|
832,445
|
|
|
$
|
4,006,854
|
|
|
$
|
93,194
|
|
|
|
|
$
|
4,100,048
|
|
||
Segment operating expenses (1)
|
|
515,742
|
|
|
121,797
|
|
|
126,714
|
|
|
290,527
|
|
|
1,054,780
|
|
|
37,648
|
|
|
|
|
1,092,428
|
|
|||||||||
Interest income, TV Azteca, net
|
|
—
|
|
|
—
|
|
|
—
|
|
|
10,547
|
|
|
10,547
|
|
|
—
|
|
|
|
|
10,547
|
|
|||||||||
Segment gross margin
|
|
2,124,048
|
|
|
97,769
|
|
|
188,339
|
|
|
552,465
|
|
|
2,962,621
|
|
|
55,546
|
|
|
|
|
3,018,167
|
|
|||||||||
Segment selling, general, administrative and development expense (1)
|
|
124,944
|
|
|
19,632
|
|
|
39,553
|
|
|
66,890
|
|
|
251,019
|
|
|
12,469
|
|
|
|
|
263,488
|
|
|||||||||
Segment operating profit
|
|
$
|
1,999,104
|
|
|
$
|
78,137
|
|
|
$
|
148,786
|
|
|
$
|
485,575
|
|
|
$
|
2,711,602
|
|
|
$
|
43,077
|
|
|
|
|
$
|
2,754,679
|
|
||
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
80,153
|
|
|
80,153
|
|
|||||||||||||
Other selling, general, administrative and development expense (2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
104,738
|
|
|
104,738
|
|
||||||||||||||
Depreciation, amortization and accretion
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,003,802
|
|
|
1,003,802
|
|
||||||||||||||
Other expense (3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
700,282
|
|
|
700,282
|
|
||||||||||||||
Income from continuing operations before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
865,704
|
|
||||||||||||||
Capital expenditures
|
|
$
|
576,153
|
|
|
$
|
74,334
|
|
|
$
|
70,126
|
|
|
$
|
229,645
|
|
|
$
|
950,258
|
|
|
$
|
—
|
|
|
$
|
24,146
|
|
|
$
|
974,404
|
|
(1)
|
Segment operating expenses and segment selling, general, administrative and development expenses exclude stock-based compensation expense of
$1.8 million
and
$78.3 million
, respectively.
|
|
|
Property
|
|
Total
Property
|
|
Services |
|
Other
|
|
Total
|
||||||||||||||||||||||
Year ended December 31, 2013
|
|
U.S.
|
|
Asia
|
|
EMEA
|
|
Latin America
|
|
|||||||||||||||||||||||
|
|
(in thousands)
|
||||||||||||||||||||||||||||||
Segment revenues
|
|
$
|
2,189,365
|
|
|
$
|
191,355
|
|
|
$
|
295,681
|
|
|
$
|
610,689
|
|
|
$
|
3,287,090
|
|
|
$
|
74,317
|
|
|
|
|
$
|
3,361,407
|
|
||
Segment operating expenses (1)
|
|
405,419
|
|
|
109,645
|
|
|
121,122
|
|
|
191,579
|
|
|
827,765
|
|
|
30,564
|
|
|
|
|
858,329
|
|
|||||||||
Interest income, TV Azteca, net
|
|
—
|
|
|
—
|
|
|
—
|
|
|
22,235
|
|
|
22,235
|
|
|
—
|
|
|
|
|
22,235
|
|
|||||||||
Segment gross margin
|
|
1,783,946
|
|
|
81,710
|
|
|
174,559
|
|
|
441,345
|
|
|
2,481,560
|
|
|
43,753
|
|
|
|
|
2,525,313
|
|
|||||||||
Segment selling, general, administrative and development expense (1)
|
|
103,989
|
|
|
15,630
|
|
|
39,076
|
|
|
62,756
|
|
|
221,451
|
|
|
9,257
|
|
|
|
|
230,708
|
|
|||||||||
Segment operating profit
|
|
$
|
1,679,957
|
|
|
$
|
66,080
|
|
|
$
|
135,483
|
|
|
$
|
378,589
|
|
|
$
|
2,260,109
|
|
|
$
|
34,496
|
|
|
|
|
$
|
2,294,605
|
|
||
Stock-based compensation expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
68,138
|
|
|
68,138
|
|
|||||||||||||
Other selling, general, administrative and development expense (2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
118,243
|
|
|
118,243
|
|
||||||||||||||
Depreciation, amortization and accretion
|
|
|
|
|
|
|
|
|
|
|
|
|
|
800,145
|
|
|
800,145
|
|
||||||||||||||
Other expense (3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
766,330
|
|
|
766,330
|
|
||||||||||||||
Income from continuing operations before income taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
541,749
|
|
||||||||||||||
Capital expenditures
|
|
$
|
416,239
|
|
|
$
|
55,914
|
|
|
$
|
67,462
|
|
|
$
|
154,534
|
|
|
$
|
694,149
|
|
|
$
|
—
|
|
|
$
|
30,383
|
|
|
$
|
724,532
|
|
(1)
|
Segment operating expenses and segment selling, general, administrative and development expenses exclude stock-based compensation expense of
$1.5 million
and
$66.6 million
, respectively.
|
|
2015
|
|
2014 (1) (2)
|
|
2013 (2)
|
||||||
U.S. property
|
$
|
19,286,465
|
|
|
$
|
14,335,731
|
|
|
$
|
13,608,818
|
|
Asia property (3)
|
736,149
|
|
|
738,290
|
|
|
743,671
|
|
|||
EMEA property (3)
|
2,249,634
|
|
|
1,275,253
|
|
|
1,472,143
|
|
|||
Latin America property (3)
|
4,401,258
|
|
|
4,700,357
|
|
|
4,184,135
|
|
|||
Services
|
68,388
|
|
|
57,367
|
|
|
47,607
|
|
|||
Other (4)
|
162,378
|
|
|
156,567
|
|
|
157,563
|
|
|||
Total assets
|
$
|
26,904,272
|
|
|
$
|
21,263,565
|
|
|
$
|
20,213,937
|
|
(4)
|
Balances include corporate assets such as cash and cash equivalents, certain tangible and intangible assets and income tax accounts which have not been allocated to specific segments.
|
|
2015
|
|
2014
|
|
2013
|
||||||
Operating Revenues:
|
|
|
|
|
|
||||||
United States
|
$
|
3,248,629
|
|
|
$
|
2,732,984
|
|
|
$
|
2,263,682
|
|
Asia (1):
|
|
|
|
|
|
||||||
India
|
242,223
|
|
|
219,566
|
|
|
191,355
|
|
|||
EMEA (1):
|
|
|
|
|
|
||||||
Germany
|
55,965
|
|
|
64,946
|
|
|
62,756
|
|
|||
Ghana
|
94,549
|
|
|
95,486
|
|
|
92,114
|
|
|||
Nigeria
|
109,701
|
|
|
—
|
|
|
—
|
|
|||
South Africa
|
80,510
|
|
|
98,334
|
|
|
91,906
|
|
|||
Uganda
|
54,367
|
|
|
56,287
|
|
|
48,905
|
|
|||
Latin America (1):
|
|
|
|
|
|
||||||
Brazil
|
408,644
|
|
|
331,089
|
|
|
212,201
|
|
|||
Chile
|
29,650
|
|
|
31,756
|
|
|
28,978
|
|
|||
Colombia
|
78,351
|
|
|
89,421
|
|
|
70,901
|
|
|||
Costa Rica
|
17,244
|
|
|
16,742
|
|
|
4,055
|
|
|||
Mexico
|
340,461
|
|
|
354,116
|
|
|
288,306
|
|
|||
Panama (2)
|
—
|
|
|
1,243
|
|
|
424
|
|
|||
Peru
|
11,222
|
|
|
8,078
|
|
|
5,824
|
|
|||
Total operating revenues
|
$
|
4,771,516
|
|
|
$
|
4,100,048
|
|
|
$
|
3,361,407
|
|
(1)
|
Balances are translated at the applicable exchange rate and therefore may impact comparability between periods.
|
(2)
|
In September 2014, the Company completed the sale of the operations in Panama.
|
|
2015
|
|
2014 (1)
|
||||
Long-Lived Assets (2):
|
|
|
|
||||
United States
|
$
|
17,516,535
|
|
|
$
|
12,771,089
|
|
Asia (3):
|
|
|
|
||||
India
|
619,370
|
|
|
616,266
|
|
||
EMEA (3):
|
|
|
|
||||
Germany
|
388,727
|
|
|
456,698
|
|
||
Ghana
|
217,530
|
|
|
235,523
|
|
||
Nigeria
|
1,018,980
|
|
|
—
|
|
||
South Africa
|
133,088
|
|
|
184,292
|
|
||
Uganda
|
162,346
|
|
|
185,956
|
|
||
Latin America (3):
|
|
|
|
||||
Brazil
|
2,204,494
|
|
|
2,152,953
|
|
||
Chile
|
121,938
|
|
|
147,413
|
|
||
Colombia
|
256,892
|
|
|
319,260
|
|
||
Costa Rica
|
120,292
|
|
|
127,436
|
|
||
Mexico
|
976,707
|
|
|
1,188,183
|
|
||
Peru
|
59,206
|
|
|
61,490
|
|
||
Total long-lived assets
|
$
|
23,796,105
|
|
|
$
|
18,446,559
|
|
(1)
|
Balances have been revised to reflect purchase accounting measurement period adjustments and debt issuance costs related to the Company’s credit facilities (see note 1).
|
(2)
|
Includes Property and equipment, net, Goodwill and Other intangible assets, net.
|
(3)
|
Balances are translated at the applicable period end exchange rate and therefore may impact comparability between periods.
|
|
2015
|
|
2014
|
|
2013
|
|||
AT&T
|
24
|
%
|
|
20
|
%
|
|
18
|
%
|
Verizon Wireless
|
16
|
%
|
|
11
|
%
|
|
11
|
%
|
Sprint
|
13
|
%
|
|
15
|
%
|
|
16
|
%
|
T-Mobile
|
10
|
%
|
|
10
|
%
|
|
11
|
%
|
|
Three Months Ended
|
|
Year Ended
December 31,
|
||||||||||||||||
|
March 31,
|
|
June 30,
|
|
September 30,
|
|
December 31,
|
|
|||||||||||
2015:
|
|
|
|
|
|
|
|
|
|
||||||||||
Operating revenues
|
$
|
1,079,190
|
|
|
$
|
1,174,375
|
|
|
$
|
1,237,910
|
|
|
$
|
1,280,041
|
|
|
$
|
4,771,516
|
|
Costs of operations (1)
|
264,640
|
|
|
322,458
|
|
|
365,389
|
|
|
356,381
|
|
|
1,308,868
|
|
|||||
Operating income
|
419,966
|
|
|
389,774
|
|
|
400,925
|
|
|
402,124
|
|
|
1,612,789
|
|
|||||
Net income
|
195,492
|
|
|
157,180
|
|
|
97,740
|
|
|
221,595
|
|
|
672,007
|
|
|||||
Net income attributable to American Tower Corporation stockholders
|
193,317
|
|
|
156,056
|
|
|
102,999
|
|
|
232,702
|
|
|
685,074
|
|
|||||
Dividends on preferred stock
|
(9,819
|
)
|
|
(26,782
|
)
|
|
(26,781
|
)
|
|
(26,781
|
)
|
|
(90,163
|
)
|
|||||
Net income attributable to American Tower Corporation common stockholders
|
183,498
|
|
|
129,274
|
|
|
76,218
|
|
|
205,921
|
|
|
594,911
|
|
|||||
Basic net income per share attributable to American Tower Corporation common stockholders
|
0.45
|
|
|
0.31
|
|
|
0.18
|
|
|
0.49
|
|
|
1.42
|
|
|||||
Diluted net income per share attributable to American Tower Corporation common stockholders
|
0.45
|
|
|
0.30
|
|
|
0.18
|
|
|
0.48
|
|
|
1.41
|
|
|
Three Months Ended
|
|
Year Ended
December 31,
|
||||||||||||||||
|
March 31,
|
|
June 30,
|
|
September 30,
|
|
December 31,
|
|
|||||||||||
2014:
|
|
|
|
|
|
|
|
|
|
||||||||||
Operating revenues
|
$
|
984,089
|
|
|
$
|
1,031,457
|
|
|
$
|
1,038,188
|
|
|
$
|
1,046,314
|
|
|
$
|
4,100,048
|
|
Costs of operations (1)
|
260,769
|
|
|
272,275
|
|
|
284,202
|
|
|
277,019
|
|
|
1,094,265
|
|
|||||
Operating income
|
353,637
|
|
|
402,499
|
|
|
384,807
|
|
|
345,979
|
|
|
1,486,922
|
|
|||||
Net income
|
193,313
|
|
|
221,659
|
|
|
206,630
|
|
|
181,597
|
|
|
803,199
|
|
|||||
Net income attributable to American Tower Corporation stockholders
|
202,499
|
|
|
234,431
|
|
|
207,593
|
|
|
180,387
|
|
|
824,910
|
|
|||||
Dividends on preferred stock
|
—
|
|
|
(4,375
|
)
|
|
(7,700
|
)
|
|
(11,813
|
)
|
|
(23,888
|
)
|
|||||
Net income attributable to American Tower Corporation common stockholders
|
202,499
|
|
|
230,056
|
|
|
199,893
|
|
|
168,574
|
|
|
801,022
|
|
|||||
Basic net income per share attributable to American Tower Corporation common stockholders
|
0.51
|
|
|
0.58
|
|
|
0.50
|
|
|
0.43
|
|
|
2.02
|
|
|||||
Diluted net income per share attributable to American Tower Corporation common stockholders
|
0.51
|
|
|
0.58
|
|
|
0.50
|
|
|
0.42
|
|
|
2.00
|
|
(1)
|
Represents Operating expenses, exclusive of Depreciation, amortization and accretion, Selling, general, administrative and development expense, and Other operating expenses.
|
Description
|
|
Encumbrances
|
|
|
Initial cost
to company
|
|
Cost
capitalized
subsequent to
acquisition
|
|
Gross amount
carried at
close of current
period
|
|
|
Accumulated
depreciation at close of current period
|
|
Date of
construction
|
|
Date
acquired
|
|
Life on which
depreciation in
latest income
statements is
computed
|
|||||
100,131
|
sites (1)
|
|
$3,364,202
|
(2)
|
|
(3)
|
|
(3)
|
|
$
|
13,046,291
|
|
(4)
|
|
$
|
(3,994,874
|
)
|
|
Various
|
|
Various
|
|
Up to 20 years
|
|
2015
|
|
2014
|
|
2013
|
||||||
Gross amount at beginning (1)
|
$
|
10,434,326
|
|
|
$
|
9,921,276
|
|
|
$
|
8,290,313
|
|
Additions during period:
|
|
|
|
|
|
||||||
Acquisitions
|
2,620,778
|
|
|
397,837
|
|
|
1,415,171
|
|
|||
Discretionary capital projects (2)
|
210,421
|
|
|
437,720
|
|
|
314,126
|
|
|||
Discretionary ground lease purchases (3)
|
144,695
|
|
|
159,637
|
|
|
102,991
|
|
|||
Redevelopment capital expenditures (4)
|
114,089
|
|
|
96,782
|
|
|
89,960
|
|
|||
Capital improvements (5)
|
42,417
|
|
|
41,967
|
|
|
58,960
|
|
|||
Start-up capital expenditures (6)
|
35,561
|
|
|
21,173
|
|
|
15,757
|
|
|||
Other (7)
|
201,118
|
|
|
22,069
|
|
|
8,764
|
|
|||
Total additions
|
3,369,079
|
|
|
1,177,185
|
|
|
2,005,729
|
|
|||
Deductions during period:
|
|
|
|
|
|
||||||
Cost of real estate sold or disposed
|
(60,975
|
)
|
|
(60,147
|
)
|
|
(48,467
|
)
|
|||
Other (8)
|
(696,139
|
)
|
|
(569,107
|
)
|
|
(243,958
|
)
|
|||
Total deductions:
|
(757,114
|
)
|
|
(629,254
|
)
|
|
(292,425
|
)
|
|||
Balance at end
|
$
|
13,046,291
|
|
|
$
|
10,469,207
|
|
|
$
|
10,003,617
|
|
|
2015
|
|
2014
|
|
2013
|
||||||
Gross amount of accumulated depreciation at beginning
|
$
|
(3,613,078
|
)
|
|
$
|
(3,297,033
|
)
|
|
$
|
(2,968,230
|
)
|
Additions during period:
|
|
|
|
|
|
||||||
Depreciation
|
(557,052
|
)
|
|
(457,135
|
)
|
|
(408,693
|
)
|
|||
Other
|
—
|
|
|
(761
|
)
|
|
(264
|
)
|
|||
Total additions
|
(557,052
|
)
|
|
(457,896
|
)
|
|
(408,957
|
)
|
|||
Deductions during period:
|
|
|
|
|
|
||||||
Amount of accumulated depreciation for assets sold or disposed
|
30,083
|
|
|
20,953
|
|
|
17,462
|
|
|||
Other (8)
|
145,173
|
|
|
120,898
|
|
|
62,692
|
|
|||
Total deductions
|
175,256
|
|
|
141,851
|
|
|
80,154
|
|
|||
Balance at end
|
$
|
(3,994,874
|
)
|
|
$
|
(3,613,078
|
)
|
|
$
|
(3,297,033
|
)
|
(1
|
)
|
|
Annual Report on Form 10-K (File No. 001-14195) filed on April 2, 2001;
|
|
|
|
|
(2
|
)
|
|
Annual Report on Form 10-K (File No. 001-14195) filed on March 15, 2006;
|
|
|
|
|
(3
|
)
|
|
Tender Offer Statement on Schedule TO (File No. 005-55211) filed on November 29, 2006;
|
|
|
|
|
(4
|
)
|
|
Definitive Proxy Statement on Schedule 14A (File No. 001-14195) filed on March 22, 2007;
|
|
|
|
|
(5
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on May 22, 2007;
|
|
|
|
|
(6
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on August 6, 2008;
|
|
|
|
|
(7
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on March 5, 2009;
|
|
|
|
|
(8
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on May 8, 2009;
|
|
|
|
|
(9
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on August 6, 2009;
|
|
|
|
|
(10
|
)
|
|
Annual Report on Form 10-K (File No. 001-14195) filed on March 1, 2010;
|
|
|
|
|
(11
|
)
|
|
Registration Statement on Form S-3ASR (File No. 333-166805) filed on May 13, 2010;
|
|
|
|
|
(12
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on November 5, 2010;
|
|
|
|
|
(13
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on December 9, 2010;
|
|
|
|
|
(14
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on August 25, 2011;
|
|
|
|
|
(15
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on October 6, 2011;
|
|
|
|
|
(16
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on January 3, 2012;
|
|
|
|
|
(17
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on March 12, 2012;
|
|
|
|
|
(18
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on January 8, 2013;
|
|
|
|
|
(19
|
)
|
|
Annual Report on Form 10-K (File No. 001-14195) filed on February 27, 2013;
|
|
|
|
|
(20
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on May 1, 2013;
|
|
|
|
|
(21
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on May 22, 2013;
|
|
|
|
|
(22
|
)
|
|
Registration Statement on Form S-3ASR (File No. 333-188812) filed on May 23, 2013;
|
|
|
|
|
(23
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on July 31, 2013;
|
|
|
|
|
(24
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on August 19, 2013;
|
|
|
|
|
(25
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on October 30, 2013;
|
|
|
|
|
(26
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on December 12, 2013;
|
|
|
|
|
(27
|
)
|
|
Current Report on Form 8-K (File No. 001-14195) filed on May 12, 2014;
|
(28
|
)
|
|
Current Report on Form 8-K (File No. 001-141195) filed on August 7, 2014;
|
|
|
|
|
(29
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on October 30, 2014;
|
|
|
|
|
(30
|
)
|
|
Current Report on Form 8-K (File No. 001-141195) filed on February 23, 2015;
|
|
|
|
|
(31
|
)
|
|
Annual Report on Form 10-K (File No. 001-14195) filed on February 24, 2015;
|
|
|
|
|
(32
|
)
|
|
Current Report on Form 8-K (File No. 001-141195) filed on March 3, 2015;
|
|
|
|
|
(33
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on April 30, 2015;
|
|
|
|
|
(34
|
)
|
|
Current Report on Form 8-K (File No. 001-141195) filed on May 7, 2015;
|
|
|
|
|
(35
|
)
|
|
Quarterly Report on Form 10-Q (File No. 001-14195) filed on July 29, 2015;
|
|
|
|
|
(36
|
)
|
|
Current Report on Form 8-K (File No. 001-141195) filed on January 12, 2016; and
|
|
|
|
|
(37
|
)
|
|
Current Report on Form 8-K (File No. 001-141195) filed on February 16, 2016.
|
Exhibit No.
|
|
Description of Document
|
|
Exhibit File No.
|
|
|
|
||
2.1
|
|
Agreement and Plan of Merger by and between American Tower Corporation and American Tower REIT, Inc., dated as of August 24, 2011
|
|
2.1 (14)
|
|
|
|
||
3.1
|
|
Restated Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware, effective as of December 31, 2011
|
|
3.1 (16)
|
|
|
|
||
3.2
|
|
Certificate of Merger, effective as of December 31, 2011
|
|
3.2 (16)
|
|
|
|
||
3.3
|
|
Amended and Restated By-Laws of the Company, effective as of February 12, 2016
|
|
3.1 (37)
|
|
|
|
|
|
3.4
|
|
Certificate of Designations of the 5.25% Mandatory Convertible Preferred Stock, Series A, of the Company as filed with the Secretary of State of the State of Delaware, effective as of May 12, 2014
|
|
3.1 (27)
|
|
|
|
||
3.5
|
|
Certificate of Designations of 5.50% Mandatory Convertible Preferred Stock, Series B, of the Company as filed with the Secretary of State of the State of Delaware, effective as of March 3, 2015
|
|
3.1 (32)
|
|
|
|
|
|
4.1
|
|
Indenture dated as of June 10, 2009, by and between the Company and The Bank of New York Mellon Trust Company N.A., as Trustee, for the 7.25% Senior Notes due 2019
|
|
10.1 (9)
|
|
|
|
||
4.2
|
|
Indenture dated May 13, 2010, by and between the Company and The Bank of New York Mellon Trust Company N.A., as Trustee
|
|
4.3 (11)
|
|
|
|
||
4.3
|
|
Indenture dated May 23, 2013, by and between the Company and U.S. Bank National Association, as Trustee
|
|
4.12 (22)
|
|
|
|
|
|
4.4
|
|
Supplemental Indenture No. 1, dated August 16, 2010, to Indenture dated May 13, 2010, by and between the Company and The Bank of New York Mellon Trust Company N.A., as Trustee, for the 5.05% Senior Notes due 2020
|
|
4 (12)
|
|
|
|
||
4.5
|
|
Supplemental Indenture No. 2, dated December 7, 2010, to Indenture dated May 13, 2010, by and between the Company and The Bank of New York Mellon Trust Company N.A., as Trustee, for the 4.50% Senior Notes due 2018
|
|
4.1 (13)
|
|
|
|
||
4.6
|
|
Supplemental Indenture No. 3, dated as of October 6, 2011, to Indenture dated May 13, 2010, by and between the Company and The Bank of New York Mellon Trust Company N.A., as Trustee, for the 5.90% Senior Notes due 2021
|
|
4.1 (15)
|
|
|
|
||
4.7
|
|
Supplemental Indenture No. 1, dated as of December 30, 2011, to Indenture dated as of June 10, 2009, with respect to the Predecessor Registrant’s 7.25% Senior Notes, by and among, the Predecessor Registrant, the Company and The Bank of New York Mellon Trust Company N.A., as Trustee
|
|
4.4 (16)
|
|
|
|
|
|
4.8
|
|
Supplemental Indenture No. 4, dated as of December 30, 2011, to Indenture dated May 13, 2010, by and among, the Predecessor Registrant, the Company and The Bank of New York Mellon Trust Company N.A., as Trustee
|
|
4.6 (16)
|
|
|
|
||
4.9
|
|
Supplemental Indenture No. 5, dated as of March 12, 2012, to Indenture dated May 13, 2010, by and between the Company and the Bank of New York Mellon Trust Company N.A., as Trustee, for the 4.70% Senior Notes due 2022
|
|
4.1 (17)
|
|
|
|
||
4.10
|
|
Supplemental Indenture No. 6, dated as of January 8, 2013, to Indenture dated May 13, 2010, by and between the Company and the Bank of New York Mellon Trust Company N.A., as Trustee, for the 3.50% Senior Notes due 2023
|
|
4.1 (18)
|
|
|
|
||
4.11
|
|
Supplemental Indenture No. 1, dated as of August 19, 2013, to Indenture dated May 23, 2013, by and between the Company and U.S. Bank National Association, as Trustee, for the 3.40% Senior Notes due 2019 and the 5.00% Senior Notes due 2024
|
|
4.1 (24)
|
|
|
|
|
|
|
|
|
|
|
Exhibit No.
|
|
Description of Document
|
|
Exhibit File No.
|
|
|
|
|
|
4.12
|
|
Supplemental Indenture No. 2, dated as of August 7, 2014, to Indenture dated May 23, 2013, by and between the Company and U.S. Bank National Association, as Trustee, for the 3.450% Senior Notes due 2021
|
|
4.1 (28)
|
|
|
|
|
|
4.13
|
|
Supplemental Indenture No. 3, dated as of May 7, 2015, to Indenture dated May 23, 2013, by and between the Company and U.S. Bank National Association, as trustee, for the 2.800% Senior Notes due 2020 and the 4.000% Senior Notes due 2025
|
|
4.1 (34)
|
|
|
|
|
|
4.14
|
|
Supplemental Indenture No. 4, dated as of January 12, 2016, to Indenture dated May 23, 2013, by and between the Company and U.S. Bank National Association, as trustee, for the 3.300% Senior Notes due 2021 and the 4.400% Senior Notes due 2026
|
|
4.1 (36)
|
|
|
|
|
|
4.15
|
|
Deposit Agreement, dated March 3, 2015, among the Company, Computershare Trust Company, N.A., Computershare Inc. and the holders from time to time of the depositary receipts evidencing the depositary shares, for the 5.50% Mandatory Convertible Preferred Stock, Series B
|
|
4.1 (32)
|
|
|
|
|
|
4.16
|
|
Third Amended and Restated Indenture, dated May 29, 2015, by and between GTP Acquisition Partners I, LLC, ACC Tower Sub, LLC, DCS Tower Sub, LLC, GTP South Acquisitions II, LLC, GTP Acquisition Partners II, LLC, GTP Acquisition Partners, III, LLC, GTP Infrastructure I, LLC, GTP Infrastructure II, LLC, GTP Infrastructure III, LLC, GTP Towers VIII, LLC, GTP Towers I, LLC, GTP Towers II, LLC, GTP Towers IV, LLC, GTP Towers V, LLC, GTP Towers VII, LLC, GTP Towers IX, LLC, PCS Structures Towers, LLC and GTP TRS I LLC, as obligors, and The Bank of New York Mellon, as trustee
|
|
4.2 (35)
|
|
|
|
|
|
4.17
|
|
Series 2015-1 Supplement, dated May 29, 2015, to the Third Amended and Restated Indenture dated May 29, 2015
|
|
4.3(35)
|
|
|
|
|
|
4.18
|
|
Series 2015-2 Supplement, dated May 29, 2015, to the Third Amended and Restated Indenture dated May 29, 2015
|
|
4.4 (35)
|
|
|
|
|
|
10.1
|
|
American Tower Systems Corporation 1997 Stock Option Plan, as amended
|
|
(d)(1) (3)*
|
|
|
|
||
10.2
|
|
American Tower Corporation 2000 Employee Stock Purchase Plan, as amended and restated
|
|
10.5 (10)
|
|
|
|
||
10.3
|
|
American Tower Corporation 2007 Equity Incentive Plan
|
|
Annex A (4)*
|
|
|
|
||
10.4
|
|
Form of Notice of Grant of Nonqualified Stock Option and Option Agreement (U.S. Employee) Pursuant to the American Tower Corporation 2007 Equity Incentive Plan
|
|
10.6 (19)*
|
|
|
|
||
10.5
|
|
Form of Notice of Grant of Nonqualified Stock Option and Option Agreement (Non-U.S. Employee) Pursuant to the American Tower Corporation 2007 Equity Incentive Plan
|
|
10.31 (19)*
|
|
|
|
|
|
10.6
|
|
Notice of Grant of Nonqualified Stock Option and Option Agreement (Non-Employee Director) Pursuant to the American Tower Corporation 2007 Equity Incentive Plan
|
|
10.4 (5)*
|
|
|
|
|
|
10.7
|
|
Form of Restricted Stock Unit Agreement (U.S. Employee/ Non-U.S. Employee Director) Pursuant to the American Tower Corporation 2007 Equity Incentive Plan
|
|
10.8 (19)*
|
|
|
|
||
10.8
|
|
Form of Restricted Stock Unit Agreement (Non-U.S. Employee) Pursuant to the American Tower Corporation 2007 Equity Incentive Plan
|
|
10.9 (19)*
|
|
|
|
|
|
10.9
|
|
Form of Notice of Grant of Performance-Based Restricted Stock Units Agreement (U.S. Employee) Pursuant to the American Tower Corporation 2007 Equity Incentive Plan
|
|
10.1 (30)*
|
|
|
|
||
10.10
|
|
Noncompetition and Confidentiality Agreement dated as of January 1, 2004 between American Tower Corporation and William H. Hess
|
|
10.10 (2)*
|
|
|
|
Exhibit No.
|
|
Description of Document
|
|
Exhibit File No.
|
10.11
|
|
Amendment, dated August 6, 2009, to Noncompetition and Confidentiality Agreement dated as of January 1, 2004 between American Tower Corporation and William H. Hess
|
|
10.1 (6)*
|
|
|
|
|
|
10.12
|
|
First Amended and Restated Loan and Security Agreement, dated as of March 15, 2013, by and between American Tower Asset Sub, LLC and American Tower Asset Sub II, LLC, as Borrowers, and U.S. Bank National Association, as Trustee for American Tower Trust I Secured Tower Revenue Securities, as Lender
|
|
10.1 (20)
|
|
|
|
|
|
10.13
|
|
First Amended and Restated Management Agreement, dated as of March 15, 2013, by and between American Tower Asset Sub, LLC and American Tower Asset Sub II, LLC, as Owners, and SpectraSite Communications, LLC, as Manager
|
|
10.2 (20)
|
|
|
|
|
|
10.14
|
|
First Amended and Restated Cash Management Agreement, dated as of March 15, 2013, by and among American Tower Asset Sub, LLC and American Tower Asset Sub II, LLC, as Borrowers, and U.S. Bank National Association, as Trustee for American Tower Trust I Secured Tower Revenue Securities, as Lender, Midland Loan Services, a Division of PNC Bank, National Association, as Servicer, U.S. Bank National Association, as Agent, and SpectraSite Communications, LLC, as Manager
|
|
10.3 (20)
|
|
|
|
|
|
10.15
|
|
First Amended and Restated Trust and Servicing Agreement, dated as of March 15, 2013, by and among American Tower Depositor Sub, LLC, as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Servicer, and U.S. Bank National Association, as Trustee
|
|
10.4 (20)
|
|
|
|
|
|
10.16
|
|
Lease and Sublease by and among ALLTEL Communications, Inc. and the other entities named therein and American Towers, Inc. and American Tower Corporation, dated , 2001
|
|
2.1 (1)
|
|
|
|
|
|
10.17
|
|
Agreement to Sublease by and among ALLTEL Communications, Inc. the ALLTEL entities and American Towers, Inc. and American Tower Corporation, dated December 19, 2000
|
|
2.2 (1)
|
|
|
|
|
|
10.18
|
|
Lease and Sublease, dated as of December 14, 2000, by and among SBC Tower Holdings LLC, Southern Towers, Inc., SBC Wireless, LLC and SpectraSite Holdings, Inc. (incorporated by reference from Exhibit 10.2 to the SpectraSite Holdings, Inc. Quarterly Report on Form 10-Q (File No. 000-27217) filed on May 11, 2001)
|
|
10.2
|
|
|
|
|
|
10.19
|
|
Summary Compensation Information for Current Named Executive Officers (incorporated by reference from Item 5.02(e) of Current Report on Form 8-K (File No. 001-14195) filed on February 23, 2015)
|
|
*
|
|
|
|
|
|
10.20
|
|
Amendment to Lease and Sublease, dated September 30, 2008, by and between SpectraSite, LLC, American Tower Asset Sub II, LLC, SBC Wireless, LLC and SBC Tower Holdings LLC
|
|
10.7 (8)**
|
|
|
|
|
|
10.21
|
|
Form of Waiver and Termination Agreement
|
|
10.4 (7)
|
|
|
|
|
|
10.22
|
|
American Tower Corporation Severance Plan, as amended
|
|
10.35 (10)*
|
|
|
|
|
|
10.23
|
|
American Tower Corporation Severance Plan, Program for Executive Vice Presidents and Chief Executive Officer, as amended
|
|
10.36 (10)*
|
|
|
|
||
10.24
|
|
Letter Agreement, dated as of February 9, 2015 by and between the Company and Steven C. Marshall
|
|
10.24 (31)
|
|
|
|
Exhibit No.
|
|
Description of Document
|
|
Exhibit File No.
|
|
|
|
|
|
10.26
|
|
Securities Purchase and Merger Agreement, dated as of September 6, 2013, among American Tower Investments LLC, as buyer, LMIF Pylon Guernsey Limited, Macquarie Specialised Asset Management Limited, solely in its capacity as responsible entity of Macquarie Global Infrastructure Fund IIIA, Macquarie Specialised Asset Management 2 Limited, solely in its capacity as responsible entity of Macquarie Global Infrastructure Fund IIIB, Macquarie Infrastructure Partners II U.S., L.P., Macquarie Infrastructure Partners II International, L.P., Macquarie Infrastructure Partners Canada, L.P., Macquarie Infrastructure Partners A, L.P., Macquarie Infrastructure Partners International, L.P., Stichting Depositary PGGM Infrastructure Funds, as sellers, Macquarie GTP Investments LLC, GTP Investments LLC, Macquarie Infrastructure Partners Inc., and the other parties thereto
|
|
10.1 (25)
|
|
|
|
||
10.27
|
|
First Amendment to the Securities Purchase and Merger Agreement, dated as of September 20, 2013, to the Securities Purchase and Merger Agreement dated September 6, 2013
|
|
10.2 (25)
|
|
|
|
||
10.28
|
|
Second Amendment to the Securities Purchase and Merger Agreement, dated as of September 26, 2013, to the Securities Purchase and Merger Agreement dated September 6, 2013
|
|
10.3 (25)
|
10.29
|
|
Amended and Restated Indenture, dated as of February 28, 2012, by and between GTP Cellular Sites, LLC, Cell Tower Lease Acquisition LLC, GLP Cell Site I, LLC, GLP Cell Site II, LLC, GLP Cell Site III, LLC, GLP Cell Site IV, LLC, GLP Cell Site A, LLC, Cell Site NewCo II, LLC, as obligors, and Deutsche Bank Trust Company Americas, as indenture trustee
|
|
10.15 (25)
|
|
|
|
|
|
10.30
|
|
Series 2012-1 and Series 2012-2 Indenture Supplement, dated as of February 28, 2012, to the Amended and Restated Indenture dated February 28, 2012
|
|
10.16 (25)
|
|
|
|
|
|
10.31
|
|
Loan Agreement, dated as of June 28, 2013, among the Company, as Borrower, Toronto Dominion (Texas) LLC, as Administrative Agent and Swingline Lender, Barclays Bank PLC, Citibank, N.A. and Bank of America, N.A., as Syndication Agents, JPMorgan Chase Bank, N.A., as Documentation Agent, TD Securities (USA) LLC, Barclays Bank PLC, Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith, Incorporated, as Co-Lead Arrangers and Joint Bookrunners, and the several other lenders that are parties thereto
|
|
10.1 (23)
|
|
|
|
||
10.32
|
|
First Amendment to Loan Agreement, dated as of September 20, 2013, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and a majority of the lenders under the Company’s Loan Agreement entered into on June 28, 2013
|
|
10.7 (25)
|
|
|
|
||
10.33
|
|
Term Loan Agreement, dated as of October 29, 2013, among the Company, as borrower, The Royal Bank of Scotland plc, as administrative agent, Royal Bank of Canada and TD Securities (USA) LLC, as co-syndication agents, JPMorgan Chase Bank, N.A., Barclays Bank PLC, Citibank, N.A, Morgan Stanley MUFG Loan Partners, LLC and CoBank, ACB as co-documentation agents, RBS Securities Inc., RBC Capital Markets, LLC, TD Securities (USA) LLC, J.P. Morgan Securities LLC and Barclays Bank PLC, as joint lead arrangers and joint bookrunners, and the several other lenders that are parties thereto
|
|
10.8 (25)
|
|
|
|
||
10.34
|
|
Amended and Restated Loan Agreement, dated as of September 19, 2014, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and swingline lender, TD Securities (USA) LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Morgan Stanley MUFG Loan Partners, LLC and RBS Securities Inc., as joint lead arrangers and joint bookrunners, Citibank, N.A., JPMorgan Chase Bank, N.A., Morgan Stanley MUFG Loan Partners, LLC and The Royal Bank of Scotland plc, as co-syndication agents, and the other lenders that are parties thereto
|
|
10.1 (29)
|
|
|
|
|
|
10.35
|
|
Second Amendment to Loan Agreement, dated as of September 19, 2014, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and all of the lenders under the Company’s Loan Agreement entered into on June 28, 2013
|
|
10.2 (29)
|
Exhibit No.
|
|
Description of Document
|
|
Exhibit File No.
|
|
|
|
|
|
10.36
|
|
First Amendment to Term Loan Agreement, dated as of September 19, 2014, among the Company, as borrower, The Royal Bank of Scotland plc, as administrative agent, and a majority of the lenders under the Company’s Term Loan Agreement entered into on October 29, 2013
|
|
10.3 (29)
|
|
|
|
|
|
10.37
|
|
First Amendment to Loan Agreement, dated as of February 5, 2015, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and a majority of the lenders under the Company’s Amended and Restated Loan Agreement entered into on September 19, 2014
|
|
10.51 (31)
|
|
|
|
|
|
10.38
|
|
Second Amendment to Term Loan Agreement, dated as of February 5, 2015, among the Company, as borrower, The Royal Bank of Scotland plc, as administrative agent, and a majority of the lenders under the Company’s Term Loan Agreement entered into on October 29, 2013
|
|
10.52 (31)
|
|
|
|
|
|
10.39
|
|
Third Amendment to Loan Agreement, dated as of February 5, 2015, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and a majority of the lenders under the Company’s Loan Agreement entered into on June 28, 2013
|
|
10.53 (31)
|
|
|
|
|
|
10.40
|
|
Second Amendment to Loan Agreement, dated as of February 20, 2015, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and a majority of the lenders under the Company’s Amended and Restated Loan Agreement entered into on September 19, 2014
|
|
10.54 (31)
|
|
|
|
|
|
10.41
|
|
Third Amendment to Term Loan Agreement, dated as of February 20, 2015, among the Company, as borrower, The Royal Bank of Scotland plc, as administrative agent, and a majority of the lenders under the Company’s Term Loan Agreement entered into on October 29, 2013
|
|
10.55 (31)
|
|
|
|
|
|
10.42
|
|
Fourth Amendment to Loan Agreement, dated as of February 20, 2015, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and a majority of the lenders under the Company’s Loan Agreement entered into on June 28, 2013
|
|
10.56 (31)
|
|
|
|
|
|
10.43
|
|
Third Amendment to Loan Agreement, dated as of October 28, 2015, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and a majority of the lenders under the Company’s Amended and Restated Loan Agreement entered into on September 19, 2014
|
|
Filed herewith
as
Exhibit 10.43
|
|
|
|
|
|
10.44
|
|
Fourth Amendment to Term Loan Agreement, dated as of October 28, 2015, among the Company, as borrower, Mizuho Bank, Ltd. (successor to The Royal Bank of Scotland plc), as administrative agent, and a majority of the lenders under the Company’s Term Loan Agreement entered into on October 29, 2013
|
|
Filed herewith
as
Exhibit 10.44
|
|
|
|
|
|
10.45
|
|
Fifth Amendment to Loan Agreement, dated as of October 28, 2015, among the Company, as borrower, Toronto Dominion (Texas) LLC, as administrative agent, and a majority of the lenders under the Company’s Loan Agreement entered into on June 28, 2013
|
|
Filed herewith
as
Exhibit 10.45
|
|
|
|
|
|
10.46
|
|
Master Agreement, dated as of February 5, 2015, among the Company and Verizon Communications, Inc.
|
|
10.45 (31)
|
|
|
|
|
|
10.47
|
|
Commitment Letter, dated as of February 5, 2015, among the Company, Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC
|
|
10.50 (31)
|
|
|
|
|
|
10.48
|
|
Master Prepaid Lease, dated as of March 27, 2015, among certain subsidiaries of the Company and Verizon Communications Inc.
|
|
10.8 (33)
|
|
|
|
|
|
10.49
|
|
Sale Site Master Lease Agreement, dated as of March 27, 2015, among certain subsidiaries of the Company, Verizon Communications Inc. and certain of its subsidiaries
|
|
10.9 (33)
|
|
|
|
|
|
10.50
|
|
MPL Site Master Lease Agreement, dated as of March 27, 2015, among Verizon Communications Inc. and certain of its subsidiaries and ATC Sequoia LLC
|
|
10.10 (33)
|
|
|
|
|
|
10.51
|
|
Management Agreement, dated as of March 27, 2015, among Verizon Communications Inc. and certain of its subsidiaries and ATC Sequoia LLC
|
|
10.11 (33)
|
|
|
|
|
|
Exhibit No.
|
|
Description of Document
|
|
Exhibit File No.
|
|
|
|
|
|
10.52
|
|
Share Purchase Agreement, dated as of October 21, 2015, amongst ATC Asia Pacific Pte. Ltd., American Tower International, Inc., Viom Networks Limited and certain of its existing shareholders
|
|
Filed herewith as
Exhibit 10.52
|
|
|
|
|
|
10.53
|
|
Shareholders Agreement, dated as of October 21, 2015, by and amongst Viom Networks Limited, Tata Sons Limited, Tata Teleservices Limited, IDFC Private Equity Fund III, Macquarie SBI Investments Pte Limited, SBI Macquarie Infrastructure Trust and ATC Asia Pacific Pte. Ltd.
|
|
Filed herewith as
Exhibit 10.53
|
|
|
|
|
|
12
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends
|
|
Filed herewith as
Exhibit 12
|
|
|
|
||
21
|
|
Subsidiaries of the Company
|
|
Filed herewith as
Exhibit 21
|
|
|
|
||
23
|
|
Consent of Independent Registered Public Accounting Firm—Deloitte & Touche LLP
|
|
Filed herewith as
Exhibit 23
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
Filed herewith as
Exhibit 31.1
|
|
|
|
||
31.2
|
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
Filed herewith as
Exhibit 31.2
|
|
|
|
||
32
|
|
Certifications filed pursuant to 18. U.S.C. Section 1350
|
|
Filed herewith as
Exhibit 32
|
|
|
|
|
|
101
|
|
The following materials from American Tower Corporation’s Annual Report on Form 10-K for the year ended December 31, 2011, formatted in XBRL (Extensible Business Reporting Language):
101.INS—XBRL Instance Document
101.SCH—XBRL Taxonomy Extension Schema Document
101.CAL—XBRL Taxonomy Extension Calculation Linkbase Document
101.LAB—XBRL Taxonomy Extension Label Linkbase Document
101.PRE—XBRL Taxonomy Extension Presentation Linkbase Document
101.DEF—XTRL Taxonomy Extension Definition
|
|
Filed herewith
as Exhibit 101
|
*
|
Management contracts and compensatory plans and arrangements required to be filed as exhibits to this Form 10-K pursuant to Item 15(a)(3).
|
**
|
The exhibit has been filed separately with the Commission pursuant to an application for confidential treatment. The confidential portions of the exhibit have been omitted and are marked by an asterisk.
|
|
Applicable Debt Rating
|
LIBOR Advance
Applicable Margin |
Base Rate Advance
Applicable Margin |
A.
|
>
A- or A3
|
1.000%
|
0.000%
|
B.
|
BBB+ or Baa1
|
1.125%
|
0.125%
|
C.
|
BBB or Baa2
|
1.250%
|
0.250%
|
D.
|
BBB- or Baa3
|
1.375%
|
0.375%
|
E.
|
BB+ or Ba1
|
1.625%
|
0.625%
|
F.
|
<
BB or Ba2
|
2.000%
|
1.000%
|
BORROWER:
|
|
AMERICAN TOWER CORPORATION
|
|
|
|
By:
|
/s/ Leah Stearns
|
|
|
Name:
|
Leah Stearns
|
|
|
Title:
|
Senior Vice President, Treasurer and Investor Relations
|
LENDERS
|
|
TORONTO DOMINION (TEXAS) LLC
, as Administrative Agent and a Lender
|
|
|
|
By:
|
/s/ Alice Mare
|
|
|
Name:
|
Alice Mare
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
Toronto Dominion Bank, New York Branch
, as an Issuing Bank
|
|
|
|
By:
|
/s/ Robyn Zeller
|
|
|
Name:
|
Robyn Zeller
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH
, as a Lender
|
|
|
|
By:
|
/s/ Veronica Incera
|
|
|
Name:
|
Veronica Incera
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Cara Younger
|
|
|
Name:
|
Cara Younger
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Citibank, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Michael Vondriska
|
|
|
Name:
|
Michael Vondriska
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Donatus O. Anusionwu
|
|
|
Name:
|
Donatus O. Anusionwu
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
MIZUHO BANK, LTD.
, as a Lender and Issuing Bank
|
|
|
|
By:
|
/s/ Bertram H. Tang
|
|
|
Name:
|
Bertram H. Tang
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
, as a Lender
|
|
|
|
By:
|
/s/ Ola Anderssen
|
|
|
Name:
|
Ola Anderssen
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Morgan Stanley Bank, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Michael King
|
|
|
Name:
|
Michael King
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Marie F. Harrison
|
|
|
Name:
|
Marie F. Harrison
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
Barclays Bank PLC
, as a Lender
|
|
|
|
By:
|
/s/ Craig J. Malloy
|
|
|
Name:
|
Craig J. Malloy
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
ROYAL BANK OF CANADA
, as a Lender
|
|
|
|
By:
|
/s/ Alexander Oliver
|
|
|
Name:
|
Alexander Oliver
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
The Bank of Nova Scotia
, as a Lender
|
|
|
|
By:
|
/s/ Rafael Tobon
|
|
|
Name:
|
Rafael Tobon
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
SANTANDER BANK N.A.
, as a Lender
|
|
|
|
By:
|
/s/ William Maag
|
|
|
Name:
|
William Maag
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
BNP Paribas
, as a Lender
|
|
|
|
By:
|
/s/ Andrew Strait
|
|
|
Name:
|
Andrew Strait
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Raquel Latuff
|
|
|
Name:
|
Raquel Latuff
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
, as a Lender
|
|
|
|
By:
|
/s/ Tanya Crossley
|
|
|
Name:
|
Tanya Crossley
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Jill Wong
|
|
|
Name:
|
Jill Wong
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Goldman Sachs Bank USA
, as a Lender
|
|
|
|
By:
|
/s/ Rebecca Kratz
|
|
|
Name:
|
Rebecca Kratz
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
Sumitomo Mitsui Banking Corp.
, as a Lender
|
|
|
|
By:
|
/s/ David W. Kee
|
|
|
Name:
|
David W. Kee
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
Societe Generale
, as a Lender
|
|
|
|
By:
|
/s/ Linda Tam
|
|
|
Name:
|
Linda Tam
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fifth Third Bank
, as a Lender
|
|
|
|
By:
|
/s/ Colin Murphy
|
|
|
Name:
|
Colin Murphy
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
COMMERZBANK AG, NEW YORK BRANCH
, as a Lender
|
|
|
|
By:
|
/s/ Ignacio Campillo
|
|
|
Name:
|
Ignacio Campillo
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Tom Kang
|
|
|
Name:
|
Tom Kang
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
HSBC Bank USA, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Manuel Burgueno
|
|
|
Name:
|
Manuel Burgueno
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
Agreed, and executed solely in its capacity as Assignor under Section 4 of the foregoing Amendment:
|
|
|
|
|
|
|
|
SunTrust, as an Assignor
|
|
|
|
By:
|
/s/ Jason Crowley
|
|
|
Name:
|
Jason Crowley
|
|
|
Title:
|
VP
|
|
|
|
|
|
|
|
|
Entity
|
L/C Commitment
|
Toronto Dominion (Texas) LLC
|
$40,000,000
|
Citibank, N.A.
|
$40,000,000
|
JPMorgan Chase Bank, N.A.
|
$40,000,000
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
$22,000,000
|
Morgan Stanley Bank, N.A.
|
$18,000,000
|
Mizuho Bank, Ltd.
|
$40,000,000
|
|
|
Total
|
$200,000,000
|
Entity
|
Revolving Loan Commitment
|
||
Toronto Dominion (Texas) LLC
|
|
$143,000,000
|
|
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch
|
|
$145,000,000
|
|
Citibank, N.A.
|
|
$143,000,000
|
|
JPMorgan Chase Bank, N.A.
|
|
$143,000,000
|
|
Mizuho Bank, Ltd.
|
|
$143,000,000
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
|
$78,400,000
|
|
Morgan Stanley Bank , N.A.
|
|
$64,600,000
|
|
Bank of America, N.A.
|
|
$131,000,000
|
|
Barclays Bank PLC
|
|
$131,000,000
|
|
Royal Bank of Canada
|
|
$131,000,000
|
|
The Bank of Nova Scotia
|
|
$110,000,000
|
|
Santander Bank, N.A.
|
|
$100,000,000
|
|
BNP Paribas
|
|
$85,000,000
|
|
Credit Agricole Corporate and Investment Bank
|
|
$85,000,000
|
|
Goldman Sachs Bank USA
|
|
$85,000,000
|
|
Sumitomo Mitsui Banking Corporation
|
|
$84,000,000
|
|
Societe Generale
|
|
$78,000,000
|
|
Fifth Third Bank
|
|
$60,000,000
|
|
Commerzbank AG, New York Branch
|
|
$35,000,000
|
|
HSBC Bank USA, National Association
|
|
$25,000,000
|
|
Total
|
|
$2,000,000,000
|
|
|
Applicable Debt Rating
|
LIBOR Advance
Applicable Margin
|
Base Rate Advance
Applicable Margin
|
A.
|
>
A- or A3
|
1.000%
|
0.000%
|
B.
|
BBB+ or Baa1
|
1.125%
|
0.125%
|
C.
|
BBB or Baa2
|
1.250%
|
0.250%
|
D.
|
BBB- or Baa3
|
1.375%
|
0.375%
|
E.
|
BB+ or Ba1
|
1.625%
|
0.625%
|
F.
|
<
BB or Ba2
|
2.000%
|
1.000%
|
BORROWER:
|
|
AMERICAN TOWER CORPORATION
|
|
|
|
By:
|
/s/ Leah Stearns
|
|
|
Name:
|
Leah Stearns
|
|
|
Title:
|
Senior Vice President, Treasurer and Investor Relations
|
LENDERS
|
|
MIZUHO BANK, LTD.
, as Administrative Agent and a Lender
|
|
|
|
By:
|
/s/ Bertram H. Tang
|
|
|
Name:
|
Bertram H. Tang
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
MIZUHO BANK (USA)
, as Administrative Agent and a Lender
|
|
|
|
By:
|
/s/ Bertram H. Tang
|
|
|
Name:
|
Bertram H. Tang
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
TORONTO DOMINION (TEXAS) LLC
, as a Lender
|
|
|
|
By:
|
/s/ Alice Mare
|
|
|
Name:
|
Alice Mare
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
ROYAL BANK OF CANADA
, as a Lender
|
|
|
|
By:
|
/s/ Alexander Oliver
|
|
|
Name:
|
Alexander Oliver
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
Barclays Bank PLC
, as a Lender
|
|
|
|
By:
|
/s/ Craig J. Malloy
|
|
|
Name:
|
Craig J. Malloy
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
, as a Lender
|
|
|
|
By:
|
/s/ Ola Anderssen
|
|
|
Name:
|
Ola Anderssen
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Morgan Stanley Bank, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Michael King
|
|
|
Name:
|
Michael King
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
Citibank, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Michael Vondriska
|
|
|
Name:
|
Michael Vondriska
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Donatus O. Anusionwu
|
|
|
Name:
|
Donatus O. Anusionwu
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
CoBank ACB, as a Lender
|
|
|
|
By:
|
/s/ Gary Franke
|
|
|
Name:
|
Gary Franke
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH
, as a Lender
|
|
|
|
By:
|
/s/ Veronica Incera
|
|
|
Name:
|
Veronica Incera
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Cara Younger
|
|
|
Name:
|
Cara Younger
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas
, as a Lender
|
|
|
|
By:
|
/s/ Andrew Strait
|
|
|
Name:
|
Andrew Strait
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Raquel Latuff
|
|
|
Name:
|
Raquel Latuff
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
, as a Lender
|
|
|
|
By:
|
/s/ Tanya Crossley
|
|
|
Name:
|
Tanya Crossley
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Jill Wong
|
|
|
Name:
|
Jill Wong
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
The Bank of Nova Scotia
, as a Lender
|
|
|
|
By:
|
/s/ Rafael Tobon
|
|
|
Name:
|
Rafael Tobon
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Sumitomo Mitsui Banking Corp.
, as a Lender
|
|
|
|
By:
|
/s/ David W. Kee
|
|
|
Name:
|
David W. Kee
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
Goldman Sachs Bank USA
, as a Lender
|
|
|
|
By:
|
/s/ Rebecca Kratz
|
|
|
Name:
|
Rebecca Kratz
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
Fifth Third Bank
, as a Lender
|
|
|
|
By:
|
/s/ Colin Murphy
|
|
|
Name:
|
Colin Murphy
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
First Hawaiian Bank
, as a Lender
|
|
|
|
By:
|
/s/ Todd T. Nitta
|
|
|
Name:
|
Todd T. Nitta
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
HSBC Bank USA, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Manuel Burgueno
|
|
|
Name:
|
Manuel Burgueno
|
|
|
Title:
|
Senior Vice President
|
|
|
The Bank of East Asia, Limited, New York Branch, as a Lender
|
|
|
|
By:
|
/s/ James Hua
|
|
|
Name:
|
James Hua
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
By:
|
/s/ Kitty Sin
|
|
|
Name:
|
Kitty Sin
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
City National Bank
, as a Lender
|
|
|
|
By:
|
/s/ Diane Morgan
|
|
|
Name:
|
Diane Morgan
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
PEOPLE’S UNITED BANK, NATIONAL ASSOCIATION
, as a Lender
|
|
|
|
By:
|
/s/ Yvette Hawkins
|
|
|
Name:
|
Yvette Hawkins
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
Banco de Sabadell, S.A., Miami Branch
, as a Lender
|
|
|
|
By:
|
/s/ Maurici Lladó
|
|
|
Name:
|
Maurici Lladó
|
|
|
Title:
|
Executive Director, Corporate & Investment Banking Americas
|
|
|
|
|
|
|
|
|
|
|
Bank Hapoalim B.M.
, as a Lender
|
|
|
|
By:
|
/s/ Helen H. Gateson
|
|
|
Name:
|
Helen H. Gateson
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
By:
|
/s/ Charles McLaughlin
|
|
|
Name:
|
Charles McLaughlin
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AZB Funding 3
, as a Lender
|
|
|
|
By:
|
/s/ Hiroshi Matsumoto
|
|
|
Name:
|
Hiroshi Matsumoto
|
|
|
Title:
|
Deputy General Manager
|
|
|
|
|
|
|
|
|
|
|
FUYO GENERAL LEASE (USA) INC.
, as a Lender
|
|
|
|
By:
|
/s/ Yoshihisa Amari
|
|
|
Name:
|
Yoshihisa Amari
|
|
|
Title:
|
President & COO
|
|
|
|
|
|
|
|
|
|
|
SANTANDER BANK N.A.
, as a Lender
|
|
|
|
By:
|
/s/ William Maag
|
|
|
Name:
|
William Maag
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Marie F. Harrison
|
|
|
Name:
|
Marie F. Harrison
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
Agreed, and executed solely in its capacity as Assignor under Section 3 of the foregoing Amendment:
|
|
|
|
|
|
|
|
CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH
, as an Assignor
|
|
|
|
By:
|
/s/ Jane S.C. Yang
|
|
|
Name:
|
Jane S.C. Yang
|
|
|
Title:
|
V.P. & General Manager
|
|
|
|
|
|
|
|
|
|
|
Compass Bank
, as an Assignor
|
|
|
|
By:
|
/s/ Raj Nambiar
|
|
|
Name:
|
Raj Nambiar
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Applicable Debt Rating
|
LIBOR Advance
Applicable Margin |
Base Rate Advance
Applicable Margin |
A.
|
>
A- or A3
|
1.000%
|
0.000%
|
B.
|
BBB+ or Baa1
|
1.125%
|
0.125%
|
C.
|
BBB or Baa2
|
1.250%
|
0.250%
|
D.
|
BBB- or Baa3
|
1.375%
|
0.375%
|
E.
|
BB+ or Ba1
|
1.625%
|
0.625%
|
F.
|
<
BB or Ba2
|
2.000%
|
1.000%
|
BORROWER:
|
|
AMERICAN TOWER CORPORATION
|
|
|
|
By:
|
/s/ Leah Stearns
|
|
|
Name:
|
Leah Stearns
|
|
|
Title:
|
Senior Vice President, Treasurer and Investor Relations
|
LENDERS
|
|
TORONTO DOMINION (TEXAS) LLC
, as Administrative Agent and a Lender
|
|
|
|
By:
|
/s/ Alice Mare
|
|
|
Name:
|
Alice Mare
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
Toronto Dominion Bank, New York Branch
, as an Issuing Bank
|
|
|
|
By:
|
/s/ Robyn Zeller
|
|
|
Name:
|
Robyn Zeller
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Marie F. Harrison
|
|
|
Name:
|
Marie F. Harrison
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
Barclays Bank PLC
, as a Lender
|
|
|
|
By:
|
/s/ Craig J. Malloy
|
|
|
Name:
|
Craig J. Malloy
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Citibank, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Michael Vondriska
|
|
|
Name:
|
Michael Vondriska
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Donatus O. Anusionwu
|
|
|
Name:
|
Donatus O. Anusionwu
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MIZUHO BANK, LTD.
, as a Lender and Issuing Bank
|
|
|
|
By:
|
/s/ Bertram H. Tang
|
|
|
Name:
|
Bertram H. Tang
|
|
|
Title:
|
Authorized Signatory
|
|
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
, as a Lender
|
|
|
|
By:
|
/s/ Ola Anderssen
|
|
|
Name:
|
Ola Anderssen
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Morgan Stanley Bank, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Michael King
|
|
|
Name:
|
Michael King
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
ROYAL BANK OF CANADA
, as a Lender
|
|
|
|
By:
|
/s/ Alexander Oliver
|
|
|
Name:
|
Alexander Oliver
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
COMMERZBANK AG, NEW YORK BRANCH
, as a Lender
|
|
|
|
By:
|
/s/ Ignacio Campillo
|
|
|
Name:
|
Ignacio Campillo
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Tom Kang
|
|
|
Name:
|
Tom Kang
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
BNP Paribas
, as a Lender
|
|
|
|
By:
|
/s/ Andrew Strait
|
|
|
Name:
|
Andrew Strait
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Raquel Latuff
|
|
|
Name:
|
Raquel Latuff
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
SANTANDER BANK N.A.
, as a Lender
|
|
|
|
By:
|
/s/ William Maag
|
|
|
Name:
|
William Maag
|
|
|
Title:
|
Managing Director
|
|
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
, as a Lender
|
|
|
|
By:
|
/s/ Tanya Crossley
|
|
|
Name:
|
Tanya Crossley
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Jill Wong
|
|
|
Name:
|
Jill Wong
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
The Bank of Nova Scotia
, as a Lender
|
|
|
|
By:
|
/s/ Rafael Tobon
|
|
|
Name:
|
Rafael Tobon
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Goldman Sachs Bank USA
, as a Lender
|
|
|
|
By:
|
/s/ Rebecca Kratz
|
|
|
Name:
|
Rebecca Kratz
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH
, as a Lender
|
|
|
|
By:
|
/s/ Veronica Incera
|
|
|
Name:
|
Veronica Incera
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Cara Younger
|
|
|
Name:
|
Cara Younger
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Sumitomo Mitsui Banking Corp.
, as a Lender
|
|
|
|
By:
|
/s/ David W. Kee
|
|
|
Name:
|
David W. Kee
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
Fifth Third Bank
, as a Lender
|
|
|
|
By:
|
/s/ Colin Murphy
|
|
|
Name:
|
Colin Murphy
|
|
|
Title:
|
Director
|
|
|
CoBank ACB, as a Lender
|
|
|
|
By:
|
/s/ Gary Franke
|
|
|
Name:
|
Gary Franke
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
HSBC Bank USA, N.A.
, as a Lender
|
|
|
|
By:
|
/s/ Manuel Burgueno
|
|
|
Name:
|
Manuel Burgueno
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
|
|
|
Societe Generale
, as a Lender
|
|
|
|
By:
|
/s/ Linda Tam
|
|
|
Name:
|
Linda Tam
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Agreed, and executed solely in its capacity as Assignor under Section 4 of the foregoing Amendment:
|
|
|
|
|
|
|
|
SunTrust, as an Assignor
|
|
|
|
By:
|
/s/ Jason Crowley
|
|
|
Name:
|
Jason Crowley
|
|
|
Title:
|
VP
|
|
|
|
|
Entity
|
L/C Commitment
|
Toronto Dominion (Texas) LLC
|
$50,000,000
|
Bank of America, N.A.
|
$50,000,000
|
Barclays Bank PLC
|
$50,000,000
|
Citibank, N.A.
|
$50,000,000
|
Total
|
$200,000,000
|
Entity
|
Revolving Loan Commitment
|
Toronto Dominion (Texas) LLC
|
$175,000,000
|
Bank of America, N.A.
|
$175,000,000
|
Barclays Bank PLC
|
$175,000,000
|
Citibank, N.A.
|
$175,000,000
|
JPMorgan Chase Bank, N.A.
|
$175,000,000
|
Mizuho Bank, Ltd.
|
$175,000,000
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
$89,333,333
|
Morgan Stanley Bank, N.A.
|
$85,666,667
|
Royal Bank of Canada
|
$175,000,000
|
Commerzbank AG, New York Branch
|
$165,000,000
|
BNP Paribas
|
$160,000,000
|
Santander Bank, N.A.
|
$160,000,000
|
Credit Agricole Corporate and Investment Bank
|
$150,000,000
|
The Bank of Nova Scotia
|
$150,000,000
|
Goldman Sachs Bank USA
|
$125,000,000
|
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch
|
$115,000,000
|
Sumitomo Mitsui Banking Corporation
|
$95,000,000
|
Fifth Third Bank
|
$85,000,000
|
CoBank ACB
|
$50,000,000
|
HSBC Bank USA, National Association
|
$50,000,000
|
Societe Generale
|
$45,000,000
|
Total
|
$2,750,000,000
|
Exhibit 10.52
DATED OCTOBER 21, 2015
SHARE PURCHASE AGREEMENT
AMONGST
ATC ASIA PACIFIC PTE. LTD.
(the Purchaser)
AND
AMERICAN TOWER INTERNATIONAL, INC.
(the Purchaser Guarantor)
AND
THE PERSONS SET OUT IN SCHEDULE I
(the Sellers)
AND
VIOM NETWORKS LIMITED
(the Company)
TABLE OF CONTENTS
1 |
DEFINITIONS AND INTERPRETATION | 2 | ||||
2 |
SALE AND PURCHASE OF THE SALE SHARES | 15 | ||||
3 |
CONDITIONS PRECEDENT | 16 | ||||
4 |
COMPLETION | 21 | ||||
5 |
CONDITION SUBSEQUENT | 23 | ||||
6 |
REPRESENTATIONS AND WARRANTIES | 24 | ||||
7 |
UNDERTAKINGS | 28 | ||||
8 |
CONFIDENTIALITY | 37 | ||||
9 |
INDEMNITY | 38 | ||||
10 |
WITHOLDING TAX MATTERS | 42 | ||||
11 |
FEES AND EXPENSES | 42 | ||||
12 |
TERMINATION | 43 | ||||
13 |
NOTICES | 44 | ||||
14 |
GOVERNING LAW | 45 | ||||
15 |
DISPUTE RESOLUTION | 45 | ||||
16 |
MISCELLANEOUS | 47 | ||||
SCHEDULE I |
62 | |||||
SCHEDULE II |
68 | |||||
SCHEDULE III |
70 | |||||
SCHEDULE IV |
77 | |||||
SCHEDULE V |
81 | |||||
SCHEDULE VI |
82 | |||||
SCHEDULE VII |
84 | |||||
SCHEDULE VIII |
86 | |||||
SCHEDULE IX |
88 | |||||
SCHEDULE X |
90 | |||||
SCHEDULE XI |
94 |
(i)
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this Agreement ) is executed on the 21 st day of October, 2015 (the Execution Date ), at Delhi, India by and amongst:
1. | ATC ASIA PACIFIC PTE. LTD. , a company incorporated in Singapore having its registered office at One Raffles Quay, North Tower, Level 25, Singapore 048583 (hereinafter referred to as the Purchaser , which expression shall include its successors and permitted assigns); |
2. | AMERICAN TOWER INTERNATIONAL, INC. , a company incorporated in the State of Delaware, United States of America, whose registered office is at 1209 Orange Street, Wilmington, County of New Castle (hereinafter referred to as the Purchaser Guarantor , which expression shall include its successors and permitted assigns); |
3. | THE PERSONS SET OUT IN SCHEDULE I , whose description is set out in Schedule I (hereinafter collectively referred to as the Sellers , which expression shall include their successors and permitted assigns); and |
4. | VIOM NETWORKS LIMITED , a company incorporated under the Companies Act, 1956 and having its registered office at D-2, 5 th Floor, Southern Park, Saket Place, Saket, New Delhi 110017, India (hereinafter referred to as the Company , which expression shall include its successors and permitted assigns); |
(The Purchaser, the Purchaser Guarantor, the Sellers and the Company are hereinafter referred to each individually as a Party and collectively as the Parties .)
WHEREAS:
(A) | The Company is engaged in the business of establishing and maintaining passive telecom infrastructure (pursuant to IP-1 Registration (as defined hereinafter)) and providing services in relation thereto and control of the day to day management of the Company per the terms of the Existing Shareholders Agreement (as defined hereinafter) is vested with senior executive personnel of the Company. |
(B) | The Sellers collectively own 555,429,602 Equity Shares representing 83.86% of the issued and outstanding equity share capital of the Company calculated on a Fully Diluted Basis. As on the Execution Date, IIF is a preference shareholder with its rights set out in the Investment Agreement and in accordance with the Companies Act, 2013 (as may be modified, amended or re-enacted from time to time) with no ability to direct the management of the Company and its operations. Considering that IIF has a tag-along right under clause 3.3.2 of the Investment Agreement ( defined below ) on the transfer by TTSL and QTIPL of their Equity Shares in the Company, subject to the terms and conditions as set out in this Agreement and in accordance with the terms of the Investment Agreement, IIF has agreed to participate in the sale on conversion of 1/3 rd of the IIF Shares ( defined below ). |
(C) | The Purchaser has agreed to purchase from, and the Sellers have agreed to sell to the Purchaser, the Sale Shares (as defined hereinafter) in the manner and on the terms and conditions set out in this Agreement. |
(D) |
The Parties are now desirous of entering into this Agreement to record and define their |
1
mutual rights and obligations in relation to, and the terms and consideration of, the acquisition of the Sale Shares by the Purchaser. |
(E) | The Purchaser Guarantor has agreed to guarantee the obligations of the Purchaser in accordance with the terms of this Agreement. |
NOW, THEREFORE , in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
1 | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
Capitalised terms used in this Agreement shall have the following meanings:
Accounting Principles shall mean generally accepted accounting principles and policies in India as set forth in pronouncements of the Institute of Chartered Accountants of India and in the Companies Act of India and as in effect from time to time as modified and as consistently applied by the Company;
Action or Proceeding shall mean any litigation, claim, action, suit or proceeding, demand, arbitral action, governmental inquiry, investigation or criminal prosecution;
Affiliate with respect to any Person, shall mean any other Person that is directly or indirectly, through one or more intermediate Persons, Controlling, Controlled by, or under common Control of such Person, provided that for the purposes of this Agreement, the Company shall not be an Affiliate of any of the other Parties. Provided however that, (i) with respect to Indivest, the term Affiliate shall mean only GIC Pte Ltd and entities Controlled by it, and (ii) with respect to Funderburk Mauritius Limited, the term Affiliate shall mean only Funderburk Mauritius Limited and entities Controlled by it;
Agreed Accounting Firm shall mean:
(a) | Deloitte Touché Tohmatsu or any of their Indian Affiliates or associates, |
(b) | KPMG or any of their Indian Affiliates or associates, |
(c) | Price Waterhouse Coopers or any of their Indian Affiliates or associates, |
(d) | EY (formerly, Ernst & Young) or any of their Indian Affiliates or associates; or |
(e) | BMR Advisors; |
Agreement shall have the meaning given to the term in the Preamble;
Alternative Transaction shall mean:
(a) | with respect to the Company: |
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(i) | any direct or indirect merger, consolidation, sale, assignment, lease, transfer, issuance or disposition of, or similar transaction involving: |
a. | the Company or its subsidiaries with respect to all or a majority of the Sites (in each case, not being a transaction in the ordinary course of business of the Company or a transaction between a Seller and its Affiliates), or |
b. | any shares of share capital of the Company or its subsidiaries; or |
(ii) | any direct or indirect transaction, having the effect of causing a change in Control of the Company or its business. |
Provided however that (A) the issuance of any securities for the purposes of redemption of or payment of dividends in relation to the IIF Shares in accordance with the Investment Agreement; (B) the issuance of shares pursuant to the IIF Conversion; and (C) transfer of shares by any Persons constituting the Kanoria Block to their respective Affiliates or a transfer of shares by TSL or TTSL to any of their respecvtive Affiliates (including, TOF) (where such transferee has executed a deed of adherence to the Transaction Documents, as may be applicable), shall not constitute an Alternative Transaction; and
(b) | with respect to the Purchaser and its Affiliates that directly or indirectly have a presence in India, any direct or indirect acquisition, subscription, merger, consolidation, investment, sale, assignment, transfer, disposition, capital investment, purchase or any other transaction that has the effect of Purchaser or its Affiliates acquiring a stake or interest in or assets or business of any telecommunications infrastructure service provider in India, other than the Company; provided , however , that, with respect to the Purchaser and its Affiliates, an Alternative Transaction shall not include any acquisition of tower assets numbering fewer than five hundred (500) per month; provided , further , that, for the avoidance of doubt, nothing contained herein shall restrict the ordinary course of business conducted by American Tower Corporation and its Affiliates in India as of the date hereof; |
American Tower Corporation shall mean American Tower Corporation, a company incorporated under the laws of the United States of America and having its registered office at 116 Huntington Avenue, Boston, Massachusetts, U.S.A.;
Anti-Bribery Laws shall mean the US Foreign Corrupt Practices Act, 15 U.S.C. §78-dd-1, et seq. , each as existing at the time of execution of this Agreement or otherwise existing at the time a relevant action was taken;
ATC Guarantee shall mean the irrevocable and unconditional sponsor support agreement guarantee made on the date hereof in favor of the Sellers by American Tower Corporation guaranteeing the Purchaser Guarantors obligations under Clause 16.12 and the obligation of the Purchaser to pay the Purchase Consideration, and governed by laws of the State of New York;
Audited Financial Statements shall mean the audited financial statements of the Company for the period for which such financial statements pertain (including the balance sheet, profit and loss account, the notes to the financial statements, the directors report, the auditors report and all disclosures as prescribed in Schedule III of the Companies Act of India, except
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that the directors report shall not be required for the quarterly financial statements), along with all related audited statements of income, sources and uses of cash, share capital and reserves for such period;
Base Working Capital shall mean the Working Capital of INR 456,28,00,000, which has been calculated based upon the assets and liabilities of the Company set forth in the Companys Audited Financial Statements as of June 30, 2015;
Business Day shall mean a day, other than a Saturday or Sunday, on which scheduled commercial banks are open for business in (i) Mumbai and (ii) Boston and (iii) Singapore;
CCI shall mean the Competition Commission of India;
Combination shall mean and refer to the merger and amalgamation and/or combination of the businesses and operations of the Purchaser and its Affiliates in India with the business and operations of the Company such Combination to take place in accordance with the Implementation Agreement and the New Shareholders Agreement;
Combination MOU shall mean the memorandum of understanding of even date, executed between the Company, the Purchaser, TTSL, TSL, MSIPL, SMIT and IDFCPE III and each of the entities through which the Purchaser or its Affiliates undertakes its business in India along with their respective shareholders, setting out inter alia the guiding principles for the Combination and key terms and conditions to be included in the Implementation Agreement, including the principles for determination of the swap ratio for the proposed Combination and principles to ensure that there is no conflict of interest between the Purchaser, on the one hand, and the Company, the TTSL, TSL, MSIPL, SMIT and IDFCPE III, on the other;
Companies Act of India shall mean (Indian) Companies Act, 1956 and the Companies Act, 2013, as applicable, and, as amended from time to time and as supplemented by the rules and regulations issued thereunder;
Company shall have the meaning given to the term in the Preamble to this Agreement;
Company Disclosure Schedule shall mean the disclosure schedule delivered by the Company to the Purchaser on the date hereof, and as may be updated in accordance with Clause 6.6;
Company Indemnifying Seller shall have the meaning as set out in Clause 9.2;
Company Warranties shall have the meaning as set out in Clause 6.3;
Completion shall have the meaning given to the term in Clause 2.3;
Completion Date shall have the meaning given to the term in Clause 2.3;
Completion Working Capital shall mean the Working Capital calculated in accordance with the provisions of Clause 2.4 below;
Conditions Precedent shall mean those conditions set forth in Clauses 3.1, 3.2 and 3.3;
Consolidated Arbitration shall have the meaning set forth in Clause 15.7;
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Contingent Liabilities shall mean any Liability that is required under the Accounting Principles to be provisioned or reserved for in the financial statements of the Company or disclosed in the notes thereto;
Contract shall mean any subsisting agreement, lease, leave or license, evidence of Indebtedness, mortgage, indenture, security agreement or other contract, including any schedules or exhibits thereto, but excluding the Land Leases;
Control shall mean the power to direct the management or policies of a Person, directly or indirectly, whether through the ownership of shares or other securities, by contract or otherwise; provided that, in any event, the direct or indirect ownership of more than fifty percent (50%) of the securities of a Person is deemed to constitute Control of that Person, and Controlling and Controlled have corresponding meanings;
Current Assets shall mean, as of the applicable date, all of the consolidated current assets of the Company or other provisions as determined in accordance with the Accounting Principles and in accordance with Schedule VIII;
Current Liabilities shall mean, as of the applicable date, all of the consolidated current Liabilities of the Company, excluding borrowings from banks, if any, as determined in accordance with the Accounting Principles and in accordance with Schedule VIII;
De Minimis Loss shall have the meaning given to the term in Clause 9.11;
DOT shall mean the Department of Telecommunications, Ministry of Communications and Information Technology, Government of India;
Encumbrance shall mean any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, deed of trust, title retention, security interest or other encumbrance of any kind securing, or conferring any priority of payment in respect of, any obligation of any Person, or any arrangement for exercising voting rights issued to a third party, a power of attorney (by whatever name called) issued to a third party for transferring or exercising any rights or a voting trust agreement, or an interest, option, right of first offer or refusal or other transfer restriction in favour of any Person;
Equipment shall mean all physical assets (other than real property and interests therein), and includes civil and electrical infrastructure, machinery, tools, equipment, fixtures, vehicles, spare parts and other tangible property, in each case whether owned or leased by the Company, that is used by the Company for the operation or management of the Sites and includes generators, batteries, and security devices, but excluding Operator Equipment;
Equity Shares shall mean the issued and outstanding equity shares of the Company on a Fully Diluted Basis with face value of Rupees ten (Rs.10) each;
Execution Date shall have the meaning given to the term in the Preamble to this Agreement;
Executive Committee shall mean the current executive committee of the board of directors of the Company;
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Existing Inter-se Agreement shall mean the inter-se agreement, dated 29 July 2009, between certain Existing Shareholders with respect to the inter-se rights of such Existing Shareholders;
Existing Shareholders shall mean the shareholders of the Company as on the Execution Date as listed at Schedule I;
Existing Shareholders Agreement shall mean the Shareholders Agreement, dated August 18, 2009, executed inter alia between and amongst certain Existing Shareholders and the Company;
FIPB shall mean the Foreign Investment Promotion Board, Department of Economic Affairs, Ministry of Finance, Government of India;
Fully Diluted Basis shall mean, with reference to any amount or percentage of the share capital of the Company, such amount or percentage calculated as if all of the securities (including any convertible preferred shares), stock options or other obligations that are convertible into or exercisable or exchangeable for, or which carry a right to subscribe to or purchase or which represent or bestow any beneficial ownership or interest in, the shares of the Company, then issued and outstanding, had been exercised in full (whether or not such securities, stock options or other obligations are at such time exercisable or convertible), it being clarified that the IIF Conversion shall be taken into account for any calculation of shareholding on a Fully Diluted Basis. It is further clarified that any non-convertible preference shares held under the Investment Agreement shall not be considered for the purposes of determining the shareholding of the Company on a Fully Diluted Basis;
Governmental Approvals shall mean all licenses, permits, no-objection certificates, franchises, certifications, waivers, variances, registrations, consents, approvals, qualifications and other authorizations to, from or with any Governmental Authority;
Governmental Authority shall mean any governmental or statutory authority, government department, agency, commission, board, stock exchange, tribunal or court or other entity authorized to make Laws, rules or regulations or pass directions, having or purporting to have jurisdiction or any state or other sub-division thereof or any municipality, district or other sub-division thereof;
Government Entity shall mean (a) a Governmental Authority; or (b) a government owned/government-controlled association, organization, business or enterprise, provided that Funderburk Mauritius Limited or its Affiliates shall not be deemed to be a Government Entity;
Government Official shall mean (a) an employee, officer or representative of, or any person otherwise acting in an official capacity for or on behalf of a Government Entity; (b) a legislative, administrative, or judicial official, regardless of whether elected or appointed; (c) an officer of, or individual who holds a position in, a political party; (d) a candidate for political office; (e) an individual who holds any other official, ceremonial, or other appointed or inherited position with a government or any of its agencies; or (f) an officer or employee of a supra-national organization ( e.g. , World Bank, United Nations, International Monetary Fund, OECD), provided that no person employed by or representing Funderburk Mauritius Limited or its Affiliates shall be deemed to be a Government Official;
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IA CWC Certificate shall have the meaning set out in Clause 2.4.2;
IDFCPE II shall have the meaning as set out in Schedule I;
IDFCPE III shall mean IDFC Private Equity Fund III, a unit scheme of the IDFC Infrastructure Fund 3 (being a trust created under the Indian Trusts Act, 1881 and registered as a venture capital fund with the Securities Exchange Board of India under the Securities and Exchange Board of India (Venture Capital Funds) Regulations, 1996) and whose office is at 201, Naman Chambers, C-32, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India, of which IDFC Trustee Company Limited, whose registered office is at 201, Naman Chambers, C-32, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India, is a trustee and represented by IDFC Alternatives Limited, a company incorporated in India and whose registered office is at 101, Naman Chambers, C-31, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India, and a place of business at 7th floor, One IndiaBulls Centre, Jupiter Mills Compound, 841, Senapati Bapat Marg, Elphinstone Road, Mumbai 400013, India, acting in its capacity as the investment Manager of IDFC Private Equity Fund III;
IIF shall mean India Infrastructure Fund, a venture capital fund registered under the Securities and Exchange Board of India (Venture Capital Funds) Regulations 1996 and established as an irrevocable trust under the Indian Trusts Act, 1882 through the indenture dated March 4, 2008, of which IDFC Trustee Company Limited, whose registered office is at Naman Chambers, C-32, G-Block, BandraKurla Complex, Bandra East, Mumbai 400051, India, is a trustee and represented by IDFC Alternatives Limited (Investment Manager) whose registered office is at Naman Chambers, C 32, G Block, BandraKurla Complex, Bandra East, Mumbai 400051 India and a place of business at 7th floor, One IndiaBulls Centre, Jupiter Mills Compound, 841, Senapati Bapat Marg, Elphinstone Road, Mumbai 400013;
IIF Conversion shall mean the conversion of one-third of the IIF Shares into 4,621,927 Equity Shares prior to Completion in accordance with the terms of the Investment Agreement and this Agreement;
IIF Shares shall mean 249,850,022 cumulative redeemable optionally convertible preference shares held by IIF;
Implementation Agreement shall mean the implementation agreement to be entered into between the Company, the Purchaser, TTSL, TSL, MSIPL, SMIT and IDFCPE III and each of the entities through which the Purchaser undertakes its business in India along with their respective shareholders, which agreement shall incorporate the principles and guidelines set out in the Combination MOU and set out in detail the manner, terms and conditions (including the swap ratio) on which the Combination shall be undertaken and given effect;
Indebtedness shall mean, as to any Person, (a) all obligations of such Person for borrowed money (including reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers acceptances, whether or not matured), (b) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and accrued / due commercial or trade Liabilities due arising in the ordinary course of business and any other current liabilities, (d) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be
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made by such Person, whether periodically or upon the happening of a contingency, (e) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (f) all obligations of such Person under capital leases as reflected in its financial statements, but subject in any event to the Accounting Principles, (g) all indebtedness secured by any lien on any property or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall have been assumed by such Person or is non-recourse to the credit of such Person, and (h) all guarantees by such Person of the Indebtedness of any other Person, provided that the term Indebtedness shall not include any obligations under Land Leases;
Indemnifying Seller shall mean each of the Title Indemnifying Sellers, the Company Indemnifying Sellers and the KB Indemnifying Seller (as applicable);
India Tower Business shall have the meaning as set out in Clause 7.10;
Indian Law shall mean all Law having the effect of law in India;
Information shall have the meaning given to the term in Clause 8.1;
INR or Rupees or Rs. shall mean Indian rupees, being the lawful currency of India;
Investment Agreement shall mean the Investment Agreement, dated March 23, 2010, amongst IIF, TTSL, QTIPL, Tata Internet Services Limited and the Company (as amended);
IP-1 Registration shall mean the registration certificate for infrastructure provider category I bearing registration certificate No. 168/ 2007 dated August 30, 2007, issued by the DOT with a document bearing reference No. 10-40/2007 BS-1;
IT Act shall mean the Indian Income Tax Act, 1961;
Kanoria Block or KB Shareholders shall mean Mr. Sunil Kanoria, SREI, QTIPL, Confident, Optimum, Right Towers, Resurgent and Aksayakala, as described in Schedule I;
KB Indemnifying Seller shall have the meaning as set out in Clause 9.3;
Land Lease shall mean any lease, easement, right of way, license, permit or other right of use agreement pursuant to which the Company holds a leasehold interest, leasehold estate or other real property interest (including interest by way of an enforceable leave or license) or other right of use agreement for any Site, including, the associated access rights;
Law shall mean all applicable statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, by-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any Governmental Authority;
Leased Land shall mean each interest in real property or a tract of land on which a Tower (including a Rooftop Tower) is located or otherwise used by the Company for its use and benefit, as of the date of this Agreement or the Completion Date (as applicable), which parcel of real property or tract of land is leased, subleased or otherwise occupied or used to or by the Company pursuant to a Land Lease;
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Lender shall mean a lender of the Company, as identified in Part A of Schedule III, and includes any security trustee or the like acting on behalf of such lender;
Lender Consent shall mean an approval in writing from each Lender from whom consent is required with respect to the purchase of the Sale Shares by the Purchaser from the Sellers as contemplated under this Agreement, as set out in Part B of Schedule III;
Liabilities shall mean, as determined in accordance with the Accounting Principles, all Indebtedness, and other liabilities of a Person (taking into account any necessary inter-company eliminations such as receivables/payables and investments), including any liabilities relating to Taxes and liabilities of trade creditors, book overdrafts, customer deposits and provisions for gratuity or leave, encashment or fringe benefit taxes or statutory dues;
Loss or Losses shall have the meaning as set out in Clause 9.1;
Material Adverse Effect shall mean such event, circumstance or change as has had, separately or in the aggregate, a material adverse effect on the business, assets, financial condition or results of operations of the Company, it being understood that a material adverse effect exists in the event that the Company has had, or shall incur, Losses or Contingent Liabilities, individually or in the aggregate, of an amount in excess of Rupees One Thousand Crores (Rs. 1,000,00,00,000) (over and above the Losses or Contingent Liabilities that have occurred prior to the Execution Date);
Notwithstanding anything contained above, the term Material Adverse Effect shall not include, directly or indirectly, (i) any economic event affecting the economy in general or the telecommunications infrastructure industry in general, including any change in applicable Law, interest rates or exchange rates, in each case not specifically relating to the business, the Company, companies registered as Infrastructure Provider Category-1, or the transactions contemplated by this Agreement and only to the extent that it does not substantially and disproportionately affect the Company relative to other companies in the telecommunications infrastructure industry; (ii) any action taken by the Sellers or the Company as required under this Agreement, or at the instructions of, or with the approval of or as requested by the Purchaser; (iii) any event, circumstance or change arising on account of the acquisition of the Sale Shares pursuant to and in compliance with the terms of this Agreement or the execution of this Agreement; (iv) any liability arising from matters disclosed in the Company Disclosure Schedule or the Audited Financial Statements as of June 30, 2015; and (v) any liability arising out of a waiver of the Condition Precedent set out in 3.2(i) by the Purchaser;
Material Contracts shall mean (i) all MSAs; (ii) all loan agreements and security documents; (iii) all long term contracts (it being understood that any contract: (a) having a term extending more than 3 years from the Execution Date and (b) which is not terminable without notice of more than 3 (three) months shall be a long term contract for purposes of this definition); and (iv) all contracts having a value above Rs. 5,00,00,000 (Rupees five crores only); in each case executed by the Company and subsisting on the date of execution and the Completion Date. Provided however, that Material Contracts shall not include any Land Lease. The term Material Contract shall refer to any one of the Material Contracts individually;
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Monthly Management Financials shall mean monthly management financial reports for the Company consistent with the form and manner in which they are prepared by the Company historically;
MSA shall mean the master sharing agreements, binding letters/ emails of intent or term sheets and service orders (to the extent not covered by any of the aforesaid) by and between the Company and any Operator, including any amendments thereto, each listed in Schedule V;
MSIPL shall mean Macquarie SBI Infrastructure Investments Pte Limited, a company incorporated under the laws of Singapore and whose registered office is at 10 Marina Boulevard, #17-01 Tower 2, Marina Bay Financial Centre Singapore 018983;
New Shareholders Agreement shall mean the shareholders agreement executed on the Execution Date by the Company, TTSL and TSL, IDFCPE III, MSIPL and SMIT and the Purchaser;
Non Resident Seller shall mean each Seller resident outside India for the purposes of the IT Act;
Operator shall mean each carrier or operator with whom the Company has entered into an MSA;
Operator Equipment shall mean telecommunications, radio and other communications equipment on the applicable Site, in each case other than Equipment provided by the Company to an Operator;
Order shall mean any writ, judgment, decree, injunction, decision, ruling or order of any Governmental Authority (in each such case whether preliminary or final);
Other Company Warranties shall have the meaning as set out in Clause 6.4;
Owned Land shall mean each parcel of real property (whether on the ground or rooftop) or tract of land on which a Tower is located which parcel of real property or tract of land is owned by the Company;
Party or Parties shall have the meaning given to the term in the Preamble to this Agreement;
Pending Arbitration shall have the meaning as set out in Clause 15.7;
Person shall mean any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, Hindu undivided family, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under applicable Law;
Purchase Consideration shall have the meaning given to the term in Clause 2.2;
Purchaser shall have the meaning given to the term in the Preamble to this Agreement;
Purchasers CP Confirmation shall have the meaning given to the term in Clause 3.7;
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Purchaser Guarantor shall have the meaning given to the term in the Preamble to this Agreement;
Purchasers DP shall mean the depository participant of the Purchaser, the details whereof shall be notified by the Purchaser to the Sellers within two (2) Business Days from the date of receipt of the Sellers CP Confirmation by the Purchaser;
Purchasers DP Account shall mean the account maintained by the Purchaser with the Purchasers DP, the details whereof shall be notified by the Purchaser to the Sellers within two (2) Business Days from the date of receipt of the Sellers CP Confirmation by the Purchaser;
Related Party(ies) shall have the meaning assigned to it in Section 2(76) of the Companies Act, 2013;
Representatives shall mean, with respect to each Party and/or its Affiliates, its officers, directors, employees, agents, accountants, financial advisors, consultants and other representatives who have been appointed and authorized by such Party and/or its Affiliates to represent it for the purposes of this Agreement and the Transaction Documents;
Rooftop Tower shall mean a Tower that is based on a rooftop or similar such structure, rather than on the ground;
Sale Shares shall mean the 337,791,329 Equity Shares held by the Sellers (including Equity Shares to be issued to IIF prior to Completion pursuant to the IIF Conversion) the details of which are set out in Schedule I, collectively representing 51% of the total issued and outstanding equity share capital of the Company calculated on a Fully Diluted Basis;
Sellers CP Confirmation shall have the meaning given to the term in Clause 3.7;
Sellers shall have the meaning given to the term in the Preamble to this Agreement;
Sellers Bank Account shall mean the bank account of each of the Sellers set out in Schedule VI;
Sellers Disclosure Schedule shall mean the disclosure schedule relating to the Sellers delivered by the Sellers to the Purchaser on the date hereof, and as may be updated in accordance with Clause 6.6;
Sellers Depository Participants shall mean the despository participant identified in Schedule VII;
Sellers Demat Account shall have the meaning set out in Schedule VII;
Sellers Warranties shall have the meaning given to the term in Clause 6.1;
Senior Management Employee shall mean the chief executive officer of the Company and any management personnel above the grade of the vice president of the Company;
Sites shall mean the Towers located on Leased Land or Owned Land, together with the related Leased Land or Owned Land, the buildings, structures, improvements and facilities (if
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any) that relates to such Towers and that are owned or leased by the Company and the Equipment located thereon, the related Land Leases and all other necessary contracts and rights related to such Towers, but excluding Operator Equipment;
SMIT shall mean SBI Macquarie Infrastructure Trustee Private Limited as the trustee of SBI Macquarie Infrastructure Trust, a trust within the meaning of the Indian Trusts Act, 1882, having its address at 92, 2 North Avenue, Maker Maxity, Bandra Kurla Complex, Bandra (E), Mumbai - 400051, India,;
SREI shall have the meaning as set out in Schedule I;
Taxes or Taxation includes all forms of taxation (direct or indirect), charges, duties, imposts, levies or other assessments, fees, rates and withholding obligations (with respect to compensation or otherwise), imposed by any Governmental Authority under applicable Law on income or other assessment of income, profits (including dividend), service, sales, wealth, value added tax, excise, export duty, import duty, entry tax, professional tax, service tax, dividend distribution tax, capital gains, stamp duty and property tax, social security, payroll tax, whenever created or imposed under the Laws of India, and all penalties, fines and interest payable and any additions in respect of such amounts;
Tax Authority shall mean any Governmental Authority responsible for the collection, operation or administration of Taxes;
Tax Loss shall have the meaning given to the term in Clause 9.2(c);
Tax Return shall mean any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof;
Termination Date shall mean July 31, 2016, or such other date as may be agreed in writing by the Parties;
Third Party Agreements shall mean any loan agreement or any other contract of the Company that imposes any obligation on TTSL, TSL, IDFCPE II, MSIPL, SMIT or the KB Shareholders by virtue of any of the foregoing being a shareholder of the Company, or conditions the rights or obligations of the Company on the status of any of the foregoing as a shareholder of the Company, in each case as listed at Part C of Schedule III;
Third Party Approval shall mean an approval in writing to the satisfaction of the Purchaser and the Sellers from any third party (including, without limitation, the Operators but excluding the Lenders) from whom consent is required with respect to the transfer of the Sale Shares to the Purchaser as contemplated under this Agreement, only to the extent as set out in Schedule IV;
Threshold Loss shall have the meaning given to the term in Clause 9.11;
Title Indemnifying Seller shall have the meaning as set out in Clause 9.1;
TOF shall mean the Tata Opportunities Fund LP (a limited partnership registered in Singapore) or any other successor limited partnerships, managed by Tata Capital Advisors Pte. Limited and shall include:
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(i) | its general partner and limited partners |
(ii) | any Persons, funds, vehicles or companies directly or indirectly, managed or advised by Tata Capital Advisors Pte. Limited, in its capacity as an investment manager |
(iii) | Tata Capital Limited and any Persons or entities, directly or indirectly, owned or Controlled or managed by or under the joint Control of Tata Capital Limited; |
Towers shall mean the transmission tower(s), rooftop structure(s), pole(s) or similar infrastructure or equipment (including civil and electrical infrastructure) located at each of the Sites and owned or leased by the Company;
Transaction Documents shall mean:
(a) | this Agreement; |
(b) | the New Shareholders Agreement; |
(c) | the sponsor support agreement of even date executed amongst the Purchaser, the Purchaser Guarantor and the Sellers ( SPA Sponsor Support Agreement ); |
(d) | the ATC Guarantee; |
(e) | the sponsor support agreement of even date executed amongst the Purchaser, the Purchaser Guarantor, TTSL, TSL, MSIPL, SMIT and IDFCPE III ( SHA Sponsor Support Agreement ); |
(f) | the SHA sponsor support agreement guarantee executed amongst ATC, TTSL, TSL, MSIPL, SMIT and IDFCPE III ( ATC SHA Guarantee ); |
(g) | Combination MoU; |
(h) | articles of association of the Company; |
TSL shall mean Tata Sons Limited, a company incorporated under the Companies Act, 1913 and having its registered office at Bombay House, 24 Homi Mody Street, Mumbai 400001, India;
TTSL shall have the meaning as set out in Schedule I;
Updated Sellers Disclosure Schedule shall have the meaning given to the term in Clause 6.6; and
Working Capital shall mean Current Assets less Current Liabilities of the Company as of a given date, calculated in accordance with the illustration set out in Schedule VIII;
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1.2 | Interpretation |
(a) | Any reference herein to any Clause, Annexure, Schedule or Exhibit is to such Clause or Annexure or Schedule or Exhibit to this Agreement unless the context otherwise requires. The Schedules, Annexures and Exhibits to this Agreement shall be deemed to form part of this Agreement. |
(b) | References to a Party shall, where the context permits, include such Partys respective successors, legal representatives and permitted assigns. |
(c) | The headings are inserted for convenience only and shall not affect the construction of this Agreement. |
(d) | Unless the context otherwise requires, words importing the singular include the plural and vice versa , and pronouns importing a gender include each of the masculine, feminine and neuter genders. |
(e) | Unless otherwise specified, the terms hereof, herein, hereby, hereto and derivative or similar words refer to this entire Agreement. |
(f) | Reference to statutory provisions shall be construed as meaning and including references also to any amendment or re-enactment (whether before or after the Execution Date) for the time being in force and to all statutory instruments or orders made pursuant to such statutory provisions. |
(g) | Reference to the word include shall be construed without limitation. |
(h) | The words directly or indirectly mean directly or indirectly through one or more intermediary persons or through contractual or other legal arrangements, and direct or indirect shall have the correlative meanings. |
(i) | Any reference to a document in the agreed form is to the form of the relevant document agreed by and among the relevant parties thereto, and for the purpose of identification, initialed by each of them or on their behalf. |
(j) | No provisions of this Agreement shall be interpreted in favour of, or against, any Party by reason of the extent to which such Party or its counsel participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof. |
(k) | Reference in this Agreement to Sellers shall mean the Sellers severally and not jointly, and unless specifically provided in this Agreement, all respective rights and obligations of the Sellers shall be several and not joint. Further, reference to the term Sellers shall mean only those Sellers to whom the provision is relevant and shall not include or pertain to IIF until it exercises the conversion in accordance with Schedule II hereto, except for references to Sellers in Clause 6.1, and for this purpose all references to Sale Shares in Clauses 6.1(g), (i) and (j) shall refer to the IIF Shares. |
(l) |
Any reference to a Persons knowledge shall mean: (i) in the case of a company or a body corporate, the knowledge (after reasonable inquiry) of the whole time directors, |
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managing director, chief executive officer, chief financial officer and the company secretary; (ii) in the case of a fund or trust, the knowledge of the whole time directors, managing director, chief executive officer, chief financial officer and the company secretary or such other persons of similar description or responsibility; and (iii) in case of an individual, the knowledge of such individual himself. |
2 | SALE AND PURCHASE OF THE SALE SHARES |
2.1 | Upon the terms and subject to the conditions set forth in this Agreement and in consideration of the payment of the Purchase Consideration, the Sellers hereby agree and undertake to sell and the Purchaser agrees and undertakes to purchase from the Sellers, on the Completion Date, good and valid title to the Sale Shares, free and clear of all Encumbrances. The Parties hereby agree that if, at the time of Completion, the number of resulting shareholders (including the Purchaser) in the Company is less than the minimum number of shareholders required under the (Indian) Companies Act, 2013, the Purchaser shall have the right to designate its Affiliates (or any individual person who is either an employee or officer or director of the Purchaser or any of its Affiliates and details of such individual have been provided in writing to the Sellers) to purchase 1 (one) Sale Share in order to satisfy such requirement and Completion shall proceed accordingly, provided that where such designee is an Affiliate (and not an individual person as aforementioned) such Affiliate agrees in writing to be bound by all of the terms, conditions and provisions contained in this Agreement. |
2.2 | The Sale Shares shall represent at least 51% of the issued share capital of the Company on a Fully Diluted Basis (taking into account the IIF Conversion). As determined in accordance with Clause 2.4, the aggregate consideration (the Purchase Consideration ) payable by the Purchaser for the Sale Shares shall be an amount equal to: |
(a) | a fraction (x) the numerator of which is the aggregate number of Sale Shares, and (y) the denominator of which is the total number of Equity Shares; multiplied by |
(b) | an amount equal to INR 143,064,562,824.00 (Rupees Fourteen Thousand Three Hundred Six Crores Forty Five Lakhs Sixty Two Thousand Eight Hundred Twenty Four only); |
(c) | less the extent to which the Completion Working Capital is less than the Base Working Capital, provided that this sub-clause (c) shall not be applicable if the difference between the Completion Working Capital and the Base Working Capital does not exceed 20% (twenty percent) of the Base Working Capital; |
2.3 | The date on which the sale of the Sale Shares to the Purchaser and on which all actions and events provided in Clause 4.2 are completed (hereinafter referred to as Completion ) shall hereinafter be referred to as the Completion Date . |
2.4 | Calculating the Completion Working Capital |
2.4.1 | The Parties agree that for each calendar quarter falling between the Execution Date and the Completion Date, the Company shall, within 60 (sixty) days from the end of such calendar quarter, provide to the Purchaser and the Sellers, the audited financial statements of the Company (including the balance sheet and profit and loss account, and cash flow statement) along with a detailed calculation of the Working Capital as of the last date of such calendar quarter, each certified as audited by the statutory auditor of the Company. |
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2.4.2 | The Company shall provide a certificate issued by the statutory auditor of the Company setting out the calculation, determination of, and certifying, ( IA CWC Certificate ) the Completion Working Capital based on the latest audited financial statements of the Company which have been provided to the Purchaser and the Sellers under Clause 2.4.1 above, on or prior to the date occurring three (3) Business Days from the date of receipt of the last of the Sellers CP Confirmation and the Purchasers CP Confirmation by the Company. |
Provided that if the indicative Working Capital calculated on the basis of the most recent Monthly Management Financials at the time of the Seller CP Confirmation Certificate is lower than the Base Working Capital, by more than 10% (ten percent) of the Base Working Capital, then the Purchaser shall be entitled to require the Company to provide the IA CWC Certificate setting out the Completion Working Capital based on the audited financial statements of the Company as of the last/preceeding calendar quarter, and the Completion Date shall be adjusted accordingly.
2.4.3 | The determination of the Completion Working Capital by the statutory auditor of the Company shall be final and binding statement as the Completion Working Capital. |
2.4.4 | Upon receipt of the IA CWC Certificate, and in any event at least 2 (two) Business Days prior to the Completion Date, the Sellers shall issue to the Purchaser, a single statement setting out: |
(a) | the Completion Working Capital as determined under the IA CWC Certificate; and |
(b) | the aggregate Purchase Consideration and the Purchase Consideration payable by the Purchaser to each of the Sellers. |
2.5 | IIF Conversion |
2.5.1 | IIF and the Company hereby agree to undertake all steps necessary to complete the IIF Conversion in accordance with the terms set out in Schedule II. |
2.5.2 | Each of the other Parties (other than the Purchaser) hereby acknowledges that the IIF Conversion shall occur in terms of Schedule II herein and agrees to refrain from taking any action and to refrain from doing or causing to be done, anything which could reasonably be expected to impede or impair the IIF Conversion in accordance with Schedule II. |
2.6 | In the event Completion occurs after April 30, 2016, the Purchase Consideration and the Non-compete Fee shall stand automatically increased by an amount corresponding to twelve percent (12%) per annum of the Purchase Consideration and Non-compete Fee compounded on a monthly basis, calculated for a period between May 1, 2016 and the Completion Date (both dates included). |
3 | CONDITIONS PRECEDENT |
3.1 |
The Parties confirm that the following actions shall have occurred on, or prior to, the Completion Date and that Completion shall be conditional on each of the following conditions having been either satisfied or mutually waived by the Purchaser and each of the Sellers (to the extent permissible under Law and to the extent permitted under this Agreement, as the case may be, provided that, (i) Clause 3.1(e) shall be waivable only with mutual consent of the Purchaser and IIF, and shall not require waiver from other Sellers; (ii) |
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waiver of Clause 3.1(c) shall also require the consent of IIF, and (iii) Clause 3.1(i) shall not be waivable by any Party): |
(a) | the Purchaser shall have made an application to and received approval (which is subject to no materially adverse conditions, limitations or restrictions) from the FIPB for acquisition of more than fifty percent (50%) and up to one hundred percent (100%) of the Equity Shares and the CCI for acquisition of more than fifty percent (50%) and up to one hundred percent (100%) of the Equity Shares and for the Combination, in a form and manner to the satisfaction of the Parties; |
(b) | the Company shall have caused the Third Party Agreements to be duly amended in agreed form, or a consent or waiver in writing from the counterparty to each Third Party Agreement to be received, to terminate any obligation on TTSL, TSL, IDFCPE II, MSIPL, SMIT or the KB Shareholders contained therein by virtue of the TTSL, TSL, IDFCPE II, MSIPL, SMIT or the KB Shareholders being shareholders of the Company, including any requirement to maintain any minimum shareholding in the Company or any conditions on the Companys obligations or rights on such Persons maintaining any minimum shareholding in the Company and to provide for such obligations to be taken over by the Purchaser; |
(c) | the Purchaser has, prior to the IIF Conversion, executed a deed of adherence and undertaking in the form mutually agreed with IIF and covering the matters set out in Schedule XI; |
(d) | the Company shall have obtained the Lender Consents in accordance with Clause 7.5; |
(e) | IIF Conversion shall have occurred 1 (one) day prior to Completion Date ; |
(f) | the Implementation Agreement shall have been duly executed by or on behalf of the Company, the Purchaser, TTSL, TSL, MSIPL, SMIT, IDFCPE III and each of the entities through which the Purchaser undertakes its business in India along with their respective shareholders and the Combination shall be given effect in a manner such that it results in TTSL and TSL together holding at least 26% of the equity shares of the merged entity pursuant to the completion of the Combination; and |
(g) | to the knowledge of the Parties, no Action or Proceeding or Law enacted by any Governmental Authority shall have been instituted or threatened that would render it unlawful as of the Completion Date to effect the transactions contemplated by this Agreement in accordance with its respective terms. There shall not have been a nationalization or compulsory acquisition proceeding commenced concerning all or a substantial portion of either the wireless infrastructure assets in India or the Companys wireless infrastructure assets. The continued ownership by the Company of substantially all of the Sites and/or the ownership by the Purchaser of the Sale Shares, with its shares subject to foreign ownership or control following the Completion, shall not have become illegal or invalid, or if such continued ownership has become illegal or invalid, in each case, the Parties have been able, through negotiation in good faith, to agree on a method for restructuring the transactions contemplated hereby that would substantially accomplish the intent hereof; |
(h) |
the Company, the Purchaser, TTSL, TSL, MSIPL, SMIT, IDFCPE III shall have agreed upon the amended articles of association of the Company to reflect the |
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provisions of the New Shareholders Agreement to be approved at a meeting on or around the Completion Date of each of the board of directors and the shareholders of the Company; and |
(i) | the receipt of the shareholders approval by TTSL for the transfer of the Sale Shares. |
3.2 | Completion shall be conditional on each of the following conditions having been either satisfied by the Sellers and the Company (as the case may be) or waived by the Purchaser (to the extent permissible under Law and to the extent permitted under this Agreement, as the case may be): |
(a) | each Seller which is a party to the Existing Shareholders Agreement and/ or the Existing Inter-se Agreement shall have entered into deeds of termination in agreed form to duly terminate the Existing Shareholders Agreement and/ or the Existing Inter-se Agreement with effect from the Completion Date and shall have provided written waivers to the Company waiving their rights with respect to transfer restrictions under the articles of association of the Company to allow for the transfer of the Sale Shares from the Sellers to the Purchaser in accordance with the terms of this Agreement; |
(b) | the representations and warranties set out at Clause 6.1 of this Agreement shall be true and correct as on the date of execution as well as the Closing Date; |
(c) | each Seller, which holds any Sale Shares in physical form, shall have caused the dematerialization of all of such Sale Shares; |
(d) | other than the documents that are required to be furnished by the Purchaser under Clause 3.3(b), each Seller resident in India shall have provided the Purchaser all other documents (including, without limitation, the valuation report) in agreed form necessary to enable the filing of the Form FC-TRS, if applicable, and shall have agreed with the Purchaser a draft of the Form FC-TRS; |
(e) | there is no sufficient reason to believe, in the reasonable opinion of the Purchaser (evidence of which shall be provided to the Sellers by the Purchaser) that the Company, its subsidiaries, or their Representatives, have paid, offered, promised, or authorized the payment of money or anything of value, directly or indirectly, to a Government Official while knowing or having reason to believe that any portion of such exchange is for the purpose of: |
(i) | influencing any act or decision of such Government Official in his or her official capacity, including the failure to perform an official function, in order to assist the Company, its subsidiaries, or any other person in obtaining or retaining business, or directing business to any third party; |
(ii) | securing an improper advantage; |
(iii) | inducing such Government Official to use his or her influence to affect or influence any act or decision of a Government Entity to assist the Company, its subsidiaries, or any other person in obtaining or retaining business, or directing business to any third party; or |
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(iv) | providing an unlawful personal gain or benefit, of financial or other value, to such Government Official; and |
(f) | there is no sufficient reason to believe, in the reasonable opinion of the Purchaser (evidence of which shall be provided to the Sellers by the Purchaser) that any compensation provided by the Purchaser to the Sellers pursuant to this Agreement is not for the Sellers sole benefit or will be transferred or assigned to any other Person on behalf of a Seller (i) to or for the use or benefit of any Government Official; (ii) to any other Person either as an advance or reimbursement, if it knows that any part of such payment will be directly or indirectly given or paid by such other Person, or will reimburse such other Person for payments previously made, to any Government Official; or (iii) to any other Person, in order to obtain or retain business, or to secure any other improper business advantage, in violation of applicable Anti-Bribery Laws. |
(g) | no Material Adverse Effect in respect of the Company shall have occurred from the Execution Date up to the Completion Date that shall not have been cured on or prior to the Termination Date; |
(h) | each Seller shall have delivered or caused to be delivered to the Purchaser, such Completion deliveries set forth in Clause 4.2, required to be delivered by it, in form and substance satisfactory to the Purchaser, acting reasonably; |
(i) | receipt by the Company of the Third Party Approvals set out in Schedule IV hereto; |
(j) | there having been no material breach by the Company of its obligations under Clause 7.13 below; |
(k) | each Seller shall have received all corporate authorizations and approvals required to be obtained by it under Applicable Law for carrying out any or all actions required for Completion under this Agreement, except as provided in Clause 3.1(i); and |
(l) | the Kanoria Block shall have procured release of all Encumbrances that have been created on the Sale Shares held by Confident, Optimum and Right Towers in favour of any third parties, including IL&FS Financial Services Limited. |
3.3 | Completion shall be conditional on each of the following conditions having been either satisfied by the Purchaser or waived by each of the Sellers (to the extent permissible under Law and to the extent permitted under this Agreement, as the case may be): |
(a) | the Purchaser shall have executed and delivered to each of the Lenders such documents and undertakings listed in Part C of Schedule III as may be required by such Lender for granting its Lender Consent and for releasing the Sellers from any and all past liabilities and undertakings; |
(b) | the Purchaser shall have agreed with the Sellers resident in India a draft of the Form FC-TRS and shall have provided to all the Sellers resident in India any consent letters or undertakings as well as any other documents in agreed form necessary to enable the filing of the Form FC-TRS, if applicable, that are required of it under applicable Law; |
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(c) | there shall have been no (i) change in Control of the Purchaser, the Purchaser Guarantor or any of American Tower Corporations Affiliates in India such that the Purchaser, the Purchaser Guarantor or any of American Tower Corporations Affiliates in India is neither directly nor indirectly Controlled by American Tower Corporation; (ii) change in Control of American Tower Corporation; or (iii) investment into the Purchaser, Purchaser Guarantor, American Tower Corporation or its Affiliates in India by any Person who is engaged in a business similar to the business of the Company or the business of TTSL or TSL; or (iv) investments in American Tower Corporation by any Person (acting alone or in concert with others) such that the investments exceeds 9.8% of the shareholding of American Tower Corporation; |
(d) | the Purchaser shall have caused legal counsels of international repute acceptable to the Existing Shareholders to have issued: |
(i) | to the Sellers, a legal opinion certifying the enforceability of the SPA Sponsor Support Agreement and the ATC Guarantee; and |
(ii) | to TTSL, TSL, MSIPL, SMIT and IDFCPE III, a legal opinion certifying the enforceability of the SHA Sponsor Support Agreement and the ATC SHA Guarantee; |
in each case, in an agreed form, so agreed as of or prior to the Execution Date;
(e) | the Purchaser shall have delivered or caused to be delivered to each of the Sellers, such Completion deliveries set forth in Clause 4.2, required to be delivered by it, in form and substance satisfactory to the Sellers, acting reasonably; and |
(f) | the Purchaser, shall have received all corporate authorizations and approvals required to be obtained by it under Applicable Law for carrying out any or all actions required for Completion under this Agreement. |
3.4 | Each Party shall make best efforts to ensure (to the extent such Party is responsible for fulfilling such Condition Precedent) that the: (a) Condition Precedent set out in Clause 3.1(f) ( Implementation Agreement ) and Clause 3.1(g) ( Articles ) above is satisfied on or prior to expiry of 45 (forty five) days from the Execution Date; and (b) Conditions Precedent set out in Clause 3.1(b) ( Third Party Agreements ), Clause 3.2 (i) ( Third Party Approvals ), Clause 3.1(d) ( Lender Consents ), Clause 3.2(a) ( Termination of Existing Agreements ), Clause 3.2(c) ( Dematerialisation of Equity Shares ) and Clause 3.3(a) ( Purchaser Documents for Lender Consents ) are satisfied on or prior to February 29, 2016. Provided that TTSL shall commence the process for obtaining the approval of the shareholders of TTSL for the transfer of the Sale Shares within 45 (forty five) days of the Execution Date and shall make reasonable endeavors towards obtaining such approval at the earliest possible. |
3.5 | Subject to Clause 3.4 above, the Sellers shall use all reasonable endeavours to fulfill the Conditions Precedent set forth in Clauses 3.1 and 3.2 at the earliest possible date and in any event before the Termination Date. |
3.6 | Subject to Clause 3.4 above, the Purchaser shall use all reasonable endeavours to fulfill the Conditions Precedent set forth in Clauses 3.1 and 3.3 at the earliest possible date and in any event before the Termination Date. |
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3.7 | Within a period of two (2) Business Days from the fulfillment or waiver (if waived by the Purchaser and/or each of the Sellers, as the case may be, in accordance with this Agreement) of the last of the applicable Conditions Precedent (except for (i) the Conditions Precedent that are deemed to be or due to be satisfied at the Completion Date or which by their terms may only be satisfied at the Completion Date; and (ii) the Condition Precedent set out in Clause 3.1(e), the Sellers shall confirm, with respect to their respective obligations, such fulfillment or waiver in writing to the Purchaser (the Sellers CP Confirmation ) and the Purchaser shall confirm such fulfilment or waiver in writing to each of the Sellers (the Purchasers CP Confirmation ) and each of the Sellers and the Purchaser shall provide to the other all relevant documents evidencing the satisfaction of each of the said Conditions Precedent; provided , however , that if either the Purchaser or any of the Sellers objects in good faith to the determination of such fulfilment or waiver in the Purchasers CP Confirmation or the Sellers CP Confirmation, as applicable, within two (2) Business Days, the Completion shall occur upon mutual agreement between the Purchaser and all the Sellers that such fulfilment or waiver has occurred or such fulfilment or waiver is determined in accordance with Clause 15. |
3.8 | The Company shall deliver to the Purchaser, along with the delivery of the Sellers CP Confirmation by the Sellers to the Purchaser, a certificate from the statutory auditor of the Company that, as on date for which the latest audited financial statements of the Company which have been prepared and approved by the board of directors of the Company, the Company is in compliance with all financial ratios (in the loan agreements and related documents executed with the Lenders). |
3.9 | The Parties further agree and acknowledge that each of the Conditions Precedent set forth in Clause 3.1 above shall be several in nature, applicable to, and shall be the several obligation of each of the Sellers with respect to their portion of the Sale Shares only and no such Condition Precedent shall be considered on a joint basis. It is clarified that Completion in accordance with Clause 4 hereto shall proceed only if the Conditions Precedent are satisfied in respect of each of the Sellers. |
3.10 | The Parties hereby agree to cooperate with each other in good faith and provide all requisite assistance and documentation for the satisfaction of the Conditions Precedent upon being reasonably requested to do so by any of the other Parties. |
3.11 | Each Party shall bear and be responsible for its own costs and expenses arising out of or in connection with its obligations under this Clause 3. |
4 | COMPLETION |
4.1 | Subject to the fulfilment or waiver (if waived by the Purchaser and/or each of the Sellers, as the case may be, in accordance with this Agreement) of all Conditions Precedent, the Completion Date shall be the date that is 7 (seven) Business Days after the date of receipt by the Purchaser of the Sellers CP Confirmation and each of the Sellers of the Purchasers CP Confirmation (subject to Clause 3.7) or such other date as may be agreed in writing between the Purchaser and all the Sellers. Unless otherwise agreed between the Parties, Completion shall take place at 10:00 a.m. local time at the registered office of the Company. |
At least 2 (two) Business Days prior to the proposed Completion Date: (a) the Sellers shall make available for inspection to the Purchaser and/or any of its representatives, copies of duly completed delivery instructions, in the prescribed form, for the transfer of Sale Shares
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from the respective Sellers Demat Account to the Purchasers Demat Account; and (b) the Purchaser shall make available for inspection to each of the Sellers and/or their representatives a copy of the instructions to be issued by the Purchaser to its bank, as on the Completion Date, to transfer the Purchase Consideration as set out in Schedule I to each of the Sellers Bank Account.
4.2 | On the Completion Date, the events set out below shall take place simultaneously and no event set out below shall have been deemed to have occurred unless all of the other events have occurred in the manner as set out herein: |
(a) | The Purchaser shall provide each of the Sellers with a copy of the irrevocable instructions issued by the Purchaser to its bank, as on the Completion Date, to transfer the Purchase Consideration (as set out in Schedule I against each Seller) to each of the Sellers Bank Account. It is clarified that, subject to Clause 10.2 and Clause 10.3 hereof, the Purchaser shall not deduct and withhold from the Purchase Consideration or any other amount payable under this Agreement, any amounts as withholding tax. |
(b) | Each of the Sellers shall deliver to the respective Seller Depository Participant, duly executed delivery instructions, in the prescribed form, for the transfer of Sale Shares from the respective Sellers Demat Account to the Purchasers Demat Account and cause the respective Sellers Depository Participant to acknowledge such instructions and deliver a copy of such acknowledgement to the Purchaser. |
(c) | The Purchaser shall execute and the Sellers shall file the Form FC-TRS along with all necessary documents in relation to the transfer to the Purchaser of the Sale Shares if applicable, and deliver a copy acknowledging receipt by the authorized dealer to the Purchaser and the Company. |
(d) | A meeting of the board of directors of the Company shall be convened to approve the following: |
(i) | the transfer of the Sale Shares by the Sellers to the Purchaser; |
(ii) | the resignation of all director(s) appointed to the board of directors of the Company by the Kanoria Block and IDFCPE II and 2 (two) directors appointed to the board of directors of the Company by TSL and TTSL collectively; |
(iii) | the appointment of Persons as additional directors on the board of directors of the Company as nominees of the Purchaser in accordance with the New Shareholders Agreement; |
(iv) | the revocation of all powers given by the board of directors of the Company to the resigning directors, including all powers given to the managing director, and grant of powers to the new directors in such manner as may be required by the Purchaser in accordance with the terms of the New Shareholders Agreement; |
(v) | the entry of the Purchasers name in the register of members and the names of the additional directors in the register of directors; |
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(vi) | the making of relevant entries in the register of share transfer of the Company; |
(vii) | the revised articles of association of the Company in accordance with the New Shareholders Agreement; |
(viii) | the convening of meeting of shareholders of the Company at short notice to approve the actions stated in Clause 4.2(d)(iii) and Clause 4.2(d)(vii); and |
(ix) | resignation of the existing independent directors as on the Completion Date and appointment of new independent directors in accordance with the New Shareholders Agreement. |
(e) | A meeting of the shareholders of the Company shall be convened to approve the following: |
(i) | the appointment of Persons as regular directors on the board of directors of the Company as nominees of the Purchaser in accordance with the New Shareholders Agreement; and |
(ii) | the revised articles of association of the Company in accordance with the New Shareholders Agreement. |
(f) | The Company shall deliver to the Purchaser or its representative certified true copies of resolutions of the board of directors and shareholders of the Company set out above. |
(g) | The Purchaser shall have delivered certified copies of (i) its charter documents, bylaws and such other constitutive documents, (ii) the resolutions of its stockholders and board of directors approving its entry into, and completion of, the transactions contemplated by this Agreement, to the extent required under applicable Law, and (iii) a list of the directors, officers and other nominee(s) authorized to sign on behalf of the Purchaser together with their specimen signatures. |
(h) | Each Seller shall have delivered certified copies of (i) its charter documents, bylaws and such other constitutive documents; and (ii) the resolution of its stockholders and board of directors approving its entry into, and completion of, the transactions contemplated by this Agreement, to the extent required under applicable Law. |
5 | CONDITION SUBSEQUENT |
Within five (5) Business Days following the Completion Date, the Company shall file, as prescribed under the Companies Act of India, Form DIR-12 for the appointment of the Purchasers nominees to the board of directors, Form DIR-11 for resignation of the Sellers nominee(s) from the board of directors and Form MGT-14 in relation to the amendment of the articles of association of the Company, and provide certified true copies of proof of such filings to the Purchaser.
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6 | REPRESENTATIONS AND WARRANTIES |
6.1 | Each Seller, in relation to itself only, hereby makes, severally and not jointly, to the Purchaser each of the following representations and warranties (collectively, the Sellers Warranties , and each, a Sellers Warranty ) on the date of this Agreement and on the Completion Date and only in relation to its portion of the Sale Shares, as if any express or implied reference in the Sellers Warranties to the Execution Date was replaced by a reference to the Completion Date, and confirms that each of the Sellers Warranties is true and correct in all respects as on the date hereof: |
(a) | It is an entity duly formed, validly existing and in good standing under the Law of the jurisdiction of its formation; |
(b) | It has all necessary corporate power, authority and capacity to enter into this Agreement on the Execution Date and will have the necessary corporate power, authority and capacity to perform its obligations, required to be performed by it as of the Completion Date, under this Agreement prior to and as on Completion; |
(c) | Subject to receipt of the approvals required to be obtained as Conditions Precedent set out hereunder, the execution and delivery of this Agreement and the consummation of the transfer of the Sale Shares to the Purchaser as contemplated under this Agreement have been or shall have been duly authorized by all necessary corporate action required to be taken by such Seller as of the date of this Agreement or as of the Completion Date; |
(d) | This Agreement has been duly executed and delivered by it, and, assuming the due authorization, execution and delivery of this Agreement by each of the other Parties hereto, constitutes a valid and binding obligation enforceable against it in accordance with its terms, subject only to creditors rights and other Conditions Precedent set out herein, and the execution and delivery of this Agreement and the performance thereof does not contravene, violate or constitute a default of, or require any consent or notice under any provision of, any agreement or arrangement with any other Person or under any other instrument to which it is a party or by which it is or may be bound, nor will it violate any Law or Order or any other restriction of any kind or character applicable to it; |
(e) | To the knowledge of the Seller, no order has been made, resolution passed or meeting convened for its liquidation, winding up and/or for an administration order against it and there are no cases or proceedings under any applicable insolvency, reorganization or similar applicable Law, and no petition has been presented which shall have a material adverse effect on the ability of the Seller to cause Completion; |
(f) | Subject to the declarations required to be made under this Agreement, no other declaration, filing or registration with, or notice to, or authorization or Governmental Approval of, any Governmental Authority or other Person is required to be obtained or made in connection with or as a result of the execution and delivery of this Agreement by it or the consummation of the transfer of the Sale Shares to the Purchaser as contemplated herein and the performance by it of its respective obligations hereunder; |
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(g) | The Sellers are the legal and beneficial owners of the respective Sale Shares and have good, clear and marketable title to such Sale Shares, with full right and authority to deliver the same under this Agreement; |
(h) | Subject to the satisfaction of the Conditions Precedent, the transfer of its Sale Shares to the Purchaser will convey to the Purchaser good and marketable title to its respective shares, free and clear of all Encumbrances; |
(i) | There are no voting trusts, rights of pre-emption, shareholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of any of its Sale Shares, other than (i) the Existing Shareholders Agreement, (ii) the Existing Inter-se Agreement, and (iii) the Investment Agreement; |
(j) | There are no outstanding options or warrants relating to its Sale Shares, or other rights of any kind to acquire from its Sale Shares, or any other shares of the share capital of the Company or securities convertible into or exchangeable for shares of the share capital of the Company, or which otherwise confer on it any right to acquire from such Seller, any such shares or securities, nor is it committed to issue any such option, warrant, right or security or other rights relating to the Shares of the Company, other than as provided in the Investment Agreement; |
(k) | It has neither employed, nor is it subject to any valid claim of, any agent, broker, investment banker, financial advisor, finder, consultant or other intermediary who is or may be entitled to a fee or commission in connection with the transactions contemplated by this Agreement, the responsibility for which may be transferred to or fall upon the Purchaser without its express prior written consent; and |
(l) | To the knowledge of the Seller, there is no Action or Proceeding of any Governmental Authority pending or threatened, and the Seller has not received any Order, in each case, against or adversely affecting it or respecting or involving any of such Sellers Equity Shares or otherwise affecting such Sellers interests in any Equity Shares, or which seeks to prevent, restrict or delay consummation of the transactions contemplated by this Agreement, the performance by it of its obligations hereunder or the fulfillment of any of the Conditions Precedent; |
6.2 | The Purchaser hereby makes the following representations and warranties to each of the Sellers on the date of this Agreement and on the Completion Date, as if any express or implied reference in the following representations and warranties to the Execution Date was replaced by a reference to the Completion Date, and confirms that each of the following warranties are true and correct in all respects as on the date hereof: |
(a) | It is a company duly formed, validly existing and in good standing under the Law of the jurisdiction of its formation; |
(b) | It has all necessary corporate power, authority and capacity to enter into this Agreement and to perform its obligations required to be performed by it as of the Completion Date, under this Agreement; |
(c) | The execution and delivery of this Agreement and the consummation of the transactions contemplated under this Agreement have been duly authorized by all necessary corporate actions on its part; |
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(d) | This Agreement has been duly executed and delivered by it and, assuming the due authorization, execution and delivery of this Agreement by each of the other Parties hereto, constitutes a valid and binding obligation enforceable against it in accordance with its terms, subject only to creditors rights, and the execution and delivery of this Agreement and the performance thereof does not contravene, violate or constitute a default of, or require any consent or notice under any provision of, any agreement or arrangement with any third party or under any other instrument to which it is a party or by which it is or may be bound, nor will it violate any Law or Order or any other restriction of any kind or character applicable to it; |
(e) | To the knowledge of the Purchaser, no order has been made, petition presented, resolution passed or meeting convened for its liquidation, winding up and/or for an administration order against it and there are no cases or proceedings under any applicable insolvency, reorganization or similar applicable Law; |
(f) | No other declaration, filing or registration with, or notice to, or authorization or Governmental Approval of, any Governmental Authority or other Person is required to be obtained or made in connection with or as a result of the execution and delivery of this Agreement by it or the consummation of the transactions contemplated herein and the performance by it of its respective obligations hereunder; |
(g) | It has neither employed, nor is it subject to any valid claim of, any agent, broker, investment banker, financial advisor, finder, consultant or other intermediary who is or may be entitled to a fee or commission in connection with the transactions contemplated by this Agreement, other than those fees for which it shall be solely responsible; and |
(h) | There is no Action or Proceeding or Order of any Governmental Authority pending or adversely affecting, or to the Purchasers knowledge, threatened against it, or which seeks to prevent, restrict or delay consummation of the transactions contemplated by this Agreement, the performance by it of its obligations hereunder or the fulfillment of any of the Conditions Precedent. |
6.3 | The Company hereby makes to the Purchaser each of the following representations and warranties (collectively, the Company Warranties , and each, a Company Warranty ) on the date of this Agreement and on the Completion Date, as if any express or implied reference in the Company Warranties to the Execution Date was replaced by a reference to the Completion Date, and confirms that each of the Company Warranties is true and correct in all respects as on the date hereof: |
(a) | Except as disclosed in the Company Disclosure Schedule or the Audited Financial Statements for the period ending March 31, 2015 or June 30, 2015, the Company does not have any Contract with any Related Party or any of the Sellers or their respective subsidiaries neither it nor its subsidiaries, executive officers nor directors are party or subject to any Contract with any Seller, including any Contract providing for the furnishing of services to or by, providing for rental of property, real, personal or mixed, to or from, or providing for the lending or borrowing of money to or from, the leasing of property to or from, or otherwise requiring payments to or from, any Seller (other than employment arrangements); |
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(b) | The Audited Financial Statements as of March 31, 2015 and the Audited Financial Statements as of June 30, 2015 respectively give a true and fair view of the state of affairs of the Company, as of the date of such Audited Financial Statements respectively; and |
(c) | The Company Disclosure Schedule or the Audited Financial Statements for the period ending June 30, 2015 sets out the list of all Material Contracts entered into by the Company. |
6.4 | The Company hereby makes to the Purchaser each of the following representations and warranties (collectively, the Other Company Warranties , and each, a Other Company Warranty ) on the date of this Agreement and on the Completion Date, as if any express or implied reference in the Other Company Warranties to the Execution Date was replaced by a reference to the Completion Date, and confirms that each of the Other Company Warranties is true and correct in all respects as on the date hereof: |
(a) | To the best of its knowledge, the Company and its subsidiaries or its Representatives, have not paid, offered, promised, or authorized the payment of money or anything of value, directly or indirectly to a Government Official while knowing or having reason to believe that any portion of such exchange is for the purpose of: |
(i) | influencing any act or decision of such Government Official in his or her official capacity, including the failure to perform an official function, in order to assist the Company, its subsidiaries, or any other person in obtaining or retaining business, or directing business to any third party; |
(ii) | securing an improper advantage; |
(iii) | inducing such Government Official to use his or her influence to affect or influence any act or decision of a Government Entity to assist the Company, its subsidiaries, or any other person in obtaining or retaining business, or directing business to any third party; or |
(iv) | providing an unlawful personal gain or benefit, of financial or other value, to such Government Official, |
in each case in violation of the Anti-Bribery Laws; and
(b) | Other than as provided in Schedule III and Schedule IV, no other consent from any Lender or third parties pursuant to any Material Contract is required for Completion as contemplated under this Agreement. |
6.5 | Each of the Persons constituting the Kanoria Block hereby represents and warrants, as on the Execution Date and on the Completion Date, that, to the best of its knowledge, such Person is not aware of any facts, events, or circumstances which would render the representation in Clause 6.4(a) to be false or incorrect. |
6.6 | Notwithstanding anything to the contrary contained herein or elsewhere, the Parties agree and acknowledge that: |
(a) | each of the Seller Warranties and Company Warranties is separate and independent; |
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(b) | none of the Sellers or the Company shall be liable for any Loss incurred by the Purchaser (whether for breach of a Seller Warranty, Company Warranty, covenants, undertakings, or otherwise) if and to the extent that the fact, matter, event or circumstance giving rise to such Loss or claim has been disclosed to the Purchasers as part of the Company Disclosure Schedule, the Sellers Disclosure Schedule, the Updated Sellers Disclosure Schedule, the Updated Company Disclosure Schedule and the Audited Financial Statements for the period ending March 31, 2015 and June 30, 2015 made available to the Purchaser from time to time; |
(c) | for each of the Seller Warranties, the Sellers shall have the right to deliver a Sellers Disclosure Schedule on the Execution Date, setting out the facts, matters, events or circumstances, which shall act as qualifications, caveats and exceptions to the Seller Warranties; |
(d) | for each of the Company Warranties and Clause 9.2(c), the Company shall have the right to deliver a Company Disclosure Schedule on the Execution Date, setting out the facts, matters, events or circumstances, which shall act as qualifications, caveats and exceptions to the Company Warranties and Clause 9.2(c); |
(e) | all matters contained in the Sellers Disclosure Schedule and Company Disclosure Schedule, and the Audited Financial Statements for the period ending March 31, 2015 and June 30, 2015, shall automatically and without any further action, be deemed to qualify, caveat and create an exception to the Seller Warranties and the Company Warranties and Clause 9.2(c) respectively; |
(f) | at any time prior to the Completion Date, the Sellers and the Company shall inform the Purchaser promptly upon knowledge of any incorrect or inaccurate information or facts included or omitted from the Sellers Disclosure Schedule or the Company Disclosure Schedule respectively, or of any development, change, event, act, omission or occurrence after the Execution Date but before the Completion Date that results in any of the Sellers Warranties, the Company Warranties and the information relating to Clause 9.2(c), as the case may be, being untrue or incorrect as on the Completion Date; |
(g) | at any time prior to the Completion Date, the Sellers may provide the Purchaser with updated versions of the Sellers Disclosure Schedule (the Updated Sellers Disclosure Schedule ), and the Company may provide the Purchaser with updated versions of the Company Disclosure Schedule (the Updated Company Disclosure Schedule ) updated solely for the events occurring between the Execution Date and the Completion Date. All matters contained in the Updated Sellers Disclosure Schedule and Updated Company Disclosure Schedule, shall automatically and without any further action, be deemed to qualify, caveat and create an exception to the Seller Warranties and the Company Warranties and Clause 9.2(c), respectively, on and from the date of such updated disclosure. |
7 | UNDERTAKINGS |
7.1 |
Subject to Clause 8 of this Agreement and applicable Law, from the Execution Date until the Completion Date, the Company shall ensure that the Purchaser and its Representatives have reasonable access at reasonable times, and upon the Purchasers written request of at least three (3) Business Days, to all relevant personnel, officers, employees, agents, accountants, |
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properties (including each of the Sites) and facilities of the Company, all relevant books and records relating to the Company, and all relevant contracts, files and agreements and other documentation specifically required in connection with operating the Company in the possession or control of the Company relating to the Company or any of the Sites and, upon the Purchasers written request of at least three (3) Business Days, the Company shall provide the Purchaser with copies of such documents in the usual and customary format as maintained in the ordinary course (including in the case of electronically stored information, in suitable electronic form), all only to the extent as may be reasonably requested by the Purchaser in connection with the transactions contemplated by this Agreement or as needed to complete pre-integration compliance due diligence of the Company. Notwithstanding the foregoing, the Sellers and the Company shall not be required to provide the Purchaser and its Representatives with access to or copies of any information in violation of any Law or Order. The Purchaser shall ensure that all Representatives of the Purchaser shall maintain confidentiality for all such information as is required to be maintained by the Purchaser under this Agreement and any breach of such confidentiality on the part of any such Representatives of the Purchaser shall be deemed to be a breach on the part of the Purchaser. It is hereby agreed that the Purchaser shall be deemed to have complied with this obligation if it has informed its Representatives of such confidentiality requirement by way of providing for the inclusion of an appropriate provision to this effect in the agreements or other arrangements entered into with such Representatives. |
7.2 | Subject to each Partys compliance with the Anti-Bribery Laws and any other applicable Law, to the extent applicable, each Party agrees to use its commercially reasonable best endeavours to achieve the following: |
(a) | to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement, and to cooperate with the other in connection with the foregoing; |
(b) | to refrain from taking, or cause to be refrained from taking, any action and to refrain from doing or causing to be done, anything which could reasonably be expected to impede or impair the consummation and the making effective as promptly as practicable the transactions contemplated by this Agreement, including, without limitation, using its commercially reasonable endeavours to (i) obtain all necessary Governmental Approvals from Governmental Authorities, (ii) obtain or make all Governmental Approvals that are required to be obtained under any Law or Order as well as any consents, approvals, actions, filings and notices that are required under any contract, (iii) prevent entry of, or to lift or rescind, any injunction or restraining order or other Order adversely affecting the ability of the Parties to consummate the transactions contemplated by this Agreement, and (iv) effect all necessary registrations and filings, including, but not limited to, filings and submissions of information requested or required by any Governmental Authority; |
(c) | the Sellers hereby agree that the Sellers shall (and shall, by way of exercising their respective contractual and voting rights in the Company, endeavour to cause the Company to) cooperate and share information and provide documentation as may be needed by the Purchaser to obtain the approval of the CCI and FIPB for the transactions contemplated by this Agreement; and |
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(d) | each Seller shall, as promptly as practicable, use its commercially best endeavours to exercise its contractual and voting rights, including at the board and shareholders meetings of the Company, in manner such that the Company fulfills its covenants and undertakings under this Agreement and each Seller shall refrain from exercising its contractual and voting rights, including at the board and shareholders meetings of the Company, in manner such that the Company as would prevent it from fulfilling its covenants and undertakings under this Agreement. |
7.3 | Notwithstanding anything in Clause 7.2, other than as contemplated in this Agreement, neither the Sellers nor the Company shall agree to any modifications, amendments, supplements or the like that are necessary to obtain any required Governmental Approvals, Orders, consents, approvals, assignments or other arrangements, required to consummate the transactions contemplated by this Agreement, without the prior written approval of the Purchaser, which shall not be unreasonably withheld, conditioned or delayed, and the Company shall pay all fees and expenses of any modifications, amendments, supplements or the like that are implemented by the Company between the date hereof and the Completion Date that are necessary to secure any such Governmental Approval, Order, consent, approval, assignment or other arrangement. Provided however, that, in the event the Purchaser fails to take commercially reasonable action requested by any Third Party whose consent is required for the consummation of the transactions contemplated by this Agreement, the Sellers and the Company shall cease to be responsible for obtaining the consent of such Third Party or for any Loss suffered pursuant to such refusal of the Purchaser. |
7.4 | Each Party shall give each other Party prompt written notice upon the Party giving such notice becoming aware that any representation or warranty made by such Party pursuant to this Agreement is no longer true or is likely not to be true as of the Completion Date. |
7.5 | Lender Consents |
To the extent applicable, the Company, the Kanoria Block, TTSL and the Purchaser hereby agree and undertake as follows:
(a) | The Company shall obtain, the Lender Consents prior to Completion, and the Purchaser and the Sellers (as may be reasonably required) agree to aid the Company in making such applications, and to use commercially reasonable endeavours to assist the Company in securing such approvals within sixty (60) days of the Execution Date. |
(b) | On and from the Completion date, those obligations listed in Part C of Schedule III (excluding any guarantee or financial support obligations) imposed on any Seller (such obligations having been given or extended by any of the Sellers in favour of any of the Lenders, in their capacity as shareholders, promoters, sponsors or the like of the Company) under any existing debt facility (including any non-disposal undertaking or obligation to maintain any minimum shareholding) shall be extinguished and replaced and substituted by the Purchaser in their entirety. In this regard, the Purchaser shall be obliged to give all such undertakings and execute all such instruments, documents and deeds as may be required to replace and substitute those obligations listed in Part C of Schedule III (including any non-disposal undertaking or obligation to maintain any minimum shareholding) given or extended by any of the Sellers in favour of any of the Lenders, in their capacity as shareholders, promoters, sponsors or the like of the Company. |
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(c) | Neither the Sellers nor the Purchaser shall agree (unless each of the Parties provides its consent in writing) to any changes in the terms or conditions of the underlying debt facilities, other than to modify any condition requiring the Company to re-issue its preference shares on redemption; |
(d) | Notwithstanding anything to the contrary herein but subject to sub-clause (e) below, nothing shall prevent the Company from repaying (including by way of refinancing) any of the Lenders and securing a discharge of the Indebtedness of such Lender prior to Completion without any prepayment penalty or other additional charges (unless the Purchaser provides its consent in writing to incur such penalty or charge) instead of obtaining a Lender Consent from such Lender, without any prior approval of the Purchaser; provided , however , that the Company does not incur any additional incremental debt (other than by way of refinancing) to pay off any such Lender. |
(e) | If any Lender Consent is not obtained within 90 days from the Execution Date, TTSL and the Kanoria Block shall use commercially reasonable efforts, and cooperate with the Company, to cause the Company to refinance the loans provided by such Lenders whose consent is not obtained within the abovementioned period, provided that TTSL and the Kanoria Block shall not be obligated to provide any financial support to secure such refinancing. It is clarified that notwithstanding anything contained in sub-clause (d) above, no restrictions in sub-clause (d) above shall apply to refinancing made under this sub-clause (e). |
7.6 | Until (and including) the Completion Date, each Seller agrees that neither such Seller nor any of its respective Affiliates or Representatives: (i) shall, directly or indirectly, (A) make any proposal or offer or enter into any negotiation or discussion regarding any transaction that if consummated would constitute an Alternative Transaction, or (B) engage or participate in any discussions or negotiations or otherwise cooperate or provide assistance (including by way of furnishing non-public information) relating to or in contemplation of an Alternative Transaction. |
7.7 | Until (and including) the Completion Date, the Purchaser agrees that neither it nor any of its respective Affiliates or Representatives shall, directly or indirectly, (A) make any proposal or offer or enter into any negotiation or discussion regarding any transaction that if consummated would constitute an Alternative Transaction, or (B) engage or participate in any discussions or negotiations or otherwise cooperate or provide assistance (including by way of furnishing non-public information) relating to or in contemplation of an Alternative Transaction, or (C) publicly announce any agreement or enter into any definitive agreements with respect to an Alternative Transaction. |
7.8 | The Kanoria Block agrees that it shall not terminate the Contracts set forth on Schedule IX, for a period of 3 (three) months from the Completion Date. |
7.9 | Each Party agrees that, from time to time, whether before, at or after Completion, it will execute and deliver such further instruments of conveyance and transfer and take such other actions as may be necessary to carry out the purposes and intents of this Agreement and the transactions contemplated hereby. |
7.10 | Non-Compete and Non-Hire |
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(a) | The Parties acknowledge that the Kanoria Block has been in control of the management of the Company, and accordingly, it is agreed between the Purchaser and the Kanoria Block that from the Completion Date and for 3 (three) years thereafter, Kanoria Block and Mr. Hemant Kanoria, and their Affiliates, directly or indirectly will not, (i) engage in the business of owning and leasing passive infrastructure towers in India (other than through the (A) ownership and use (but not leasing) of towers, or (B) engaging in passive infrastructure sharing with other carriers as an incidental part of operating a wireless communications business) (the India Tower Business ) or (ii) acquire or own the equity securities in any Person (other than the Purchaser and its Affiliates or the Company) in India that is engaged in the India Towers Business. Provided that the above restriction shall not be applicable to (i) any Person engaged in the businesses of investments, financing, lending, holding or acquiring or trading in securities, providing financial services, or other similar activities, or (ii) any investment by a Person with the primary objective of making financial gains and without strategic rights, provided that an investment by a Person not exceeding 10% of the paid up share capital of the investee company and not having or receiving any rights leading to acquisition of Control, shall be deemed to constitute an investment with the primary objective of making financial gains without strategic rights. |
(b) | It is the intention of the Parties that the provisions of this Clause 7.10 be enforced to the fullest extent permissible under the Laws and policies of each jurisdiction in which enforcement may be sought, and that the unenforceability (or the modification to conform to such Laws or policies) of any provisions of this Clause 7.10 shall not render unenforceable, or impair, the remainder of the provisions of this Clause 7.10. Accordingly, if any provision of this Clause 7.10 shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to apply only with respect to the operation of such provision in the particular jurisdiction in which such determination is made and not with respect to any other provision or jurisdiction. |
(c) | In consideration of the Kanoria Block undertaking the obligations under this Clause 7.10, the Purchaser agrees, and the Sellers acknowledge, that: |
(i) | Subject to the provisions of sub-clause (ii) below, the Purchaser shall pay an amount of Rs. 339,00,00,000 (Rupees Three Hundred Thirty Nine Crores) ( Non-compete Fee ) to the Kanoria Block in proportion to their shareholding in the Company as on the Completion Date, over and above the Purchase Consideration payable on the Completion Date to the Kanoria Block (as Sellers); |
(ii) | the Non-compete Fee shall be made subject to deduction of Taxes (as required under applicable Law), where the rate of deduction for such purpose shall be: (A) based on the certificates obtained by the respective members of the Kanoria Block from the Assessing Officer under Section 197 of the IT Act, providing for deduction of Taxes at a lower rate, or no deduction of Taxes, as the case may be ( Section 197 Certificate ), provided, however, that the original copy of such Section 197 Certificate shall be delivered to the Purchaser by the Kanoria Block no later than two (2) Business Days prior to the Completion Date, or (B) as provided under applicable Law, where such Section 197 Certificate has not been delivered to the Purchaser within the time period provided in (A) above; |
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(iii) | where a deduction is made on account of Taxes by the Purchaser from the Non-compete Fee, the relevant tax deduction certificates shall be provided to the Kanoria Block; |
For purposes of this Clause 7.10(c), the term Assessing Officer shall have the meaning ascribed to such term in the IT Act read with Income Tax Rules, 1962.
(d) | The Parties acknowledge and agree that any remedy at law for any breach of the provisions of this Clause 7.10 would be inadequate, and the Parties hereby consent to the granting by any court or arbitration panel of an injunction or other equitable relief including specific performance, without the necessity of actual monetary loss being proved, upon the breach or threatened breach of such provisions, in addition to all other remedies that any Party is entitled to under this Agreement. |
(e) | From the Completion Date until the first (1 st ) anniversary of the Completion Date (or earlier termination of this Agreement), the Kanoria Block shall not, except with the prior written consent of the Purchaser, employ, directly or indirectly, any person employed by the Company as a key managerial personnel as of the date hereof. |
(f) | From the Execution Date until the Completion Date (or earlier termination of this Agreement), the Purchaser and its Affiliates shall not, except with the prior written consent of the Sellers, employ, directly or indirectly, any person employed by the Company as of the date hereof. |
(g) | From the Execution Date until the Completion Date (or earlier termination of this Agreement), the Purchaser, the Company and each of their Affiliates shall not represent to any customer of the other Party that the Purchaser is the shareholder or promoter of the Company or that any of its Affiliates are group companies of the Company. |
(h) | The Company has a material interest in preserving the relationships it has developed with its customers. Accordingly, each Seller, which is subject to the obligations under this Clause 7.10, agrees that the restrictions and covenants contained in this Clause are reasonably required for the protection of the Company and its goodwill and are of the essence to this Agreement and constitute a material inducement to the Purchaser to enter into this Agreement and that the Purchaser would not enter into this Agreement in the absence of such an inducement. |
7.11 |
The Purchaser shall, by no later than ten (10) Business Days after the Execution Date (such time period to be extended by such number of Business Days as may be reasonably required to collate the requisite information from all of the relevant Persons and to procure the written consent of the Sellers, as given below in this Clause 7.11), file such initial applications, notices, registrations and requests as may be required or advisable to be filed by it with any Governmental Authority in order to secure approval from the FIPB for the transactions contemplated by this Agreement. The Purchaser shall use its commercially reasonable endeavours (i) to take, or cause to be taken, all actions, and (ii) to do, or cause to be done, all things necessary, proper or advisable to obtain the FIPB approval as soon as reasonably practicable, including responding to questions and providing any additional information requested by the FIPB as quickly as reasonably practicable and, if necessary, answering any questions posed by the FIPB. Sellers shall use commercially reasonable endeavours to, and |
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the Company shall (i) cooperate with the Purchaser in the preparation and filing of any applications, notices, registrations and requests in connection with securing the approval of the FIPB, including furnishing such documents and information as may be required in this regard, and (ii) assist the Purchaser after the Completion, to the extent reasonably required by the Purchaser, in notifying the FIPB of any increase in the non-resident shareholding of the Company and holding meetings and discussions with the FIPB, if applicable. To the extent permitted by Law, the Purchaser shall provide the Sellers with copies of all correspondence between it or any of its Affiliates or its or their Representatives, on the one hand, and any Governmental Authority, on the other hand, relating to the approval of the FIPB. No applications or other filings and correspondence with any Governmental Authority shall be made without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. |
7.12 | [ Intentionally Left Blank ] |
7.13 | Standstill |
7.13.1 | From the date hereof until the Completion Date or earlier termination of this Agreement, the Company shall cause the business and affairs of the Company to be conducted in the normal and usual course of business. Except as contemplated by, or required for implementation of, this Agreement (including for conduct of business and affairs of the Company in the normal and usual course of business or pursuant to the annual business plan of the Company) or with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld), the Company shall: |
(a) | use commercially reasonable endeavours to (i) preserve intact the present operations of the Sites and preserve its rights under the applicable Land Leases, (ii) preserve intact its business organization and goodwill associated with the Sites, and (iii) preserve the goodwill and business relationships with Operators, customers, vendors and others having business relationships with them relating to the Sites; |
(b) | neither amend, nor agree to amend, the terms of its borrowing or indebtedness in the nature of borrowing with terms any more adverse than those on which the Company had obtained such existing borrowing, unless otherwise required due to the transactions contemplated in this Agreement; |
(c) | neither create, incur, nor agree to create nor incur Indebtedness (except pursuant to facilities disclosed to the Purchaser as part of the due diligence on the Company and as updated by the Company prior the Execution Date) except in the ordinary course of business or in accordance with the Companys business plan being in aggregate, over Rs. 500,00,00,000 (Rupees Five hundred crores). The Parties agree that the Company shall not, without the prior consent of the Executive Committee, create, incur, or agree to create or incur Indebtedness (except pursuant to facilities disclosed to the Purchaser in the Company Disclosure Letter or as part of the due diligence on the Company and as updated by the Company prior the Execution Date) except in the ordinary course of business or in accordance with the Companys business plan, being in aggregate over Rs. 100,00,00,000 (Rupees One hundred crores) but within Rs. 500,00,00,000 (Rupees Five hundred crores). |
Provided, however that such additional Indebtedness as stipulated in this Clause 7.13.1(c) shall be undertaken on terms no less favourable than those contained in the
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existing loan agreements with the Lenders except as approved by the Executive Committee;
Provided , further that nothing contained in this Clause 7.13.1(c) shall (a) prevent or restrict the Company or the Sellers from refinancing or replacing any existing borrowing listed in Schedule III that is obtained by the Company (x) without any adverse terms, conditions or costs being imposed on the Purchaser in connection therewith, (y) on terms and conditions no less favorable than the refinanced or replaced borrowing, (z) from a party other than a Related Party of any of the Sellers; or (b) utilize or draw down any existing unutilized working capital limit already sanctioned by Lenders in favour of the Company;
Provided that, notwithstanding anything contained herein, nothing in this Clause 7.13 shall apply to the creation of or incurring (or agreeing to create or incur) Indebtedness up to Rs. 100,00,00,000 (Rupees One hundred crores).
(d) | neither sell, dispose of, nor transfer any Site (or other material asset), except for (i) ordinary course sales, dispositions or transfers consistent with the Companys treatment of dismantling for scrap not having a book value in aggregate exceeding Rs. 25,00,00,000 (Rupees Twenty Five Crores) per calender quarter, or (ii) dismantling a Site that has no Operators provided that not more than 150 Sites are dismantled in any calendar quarter, it being clarified that sales pursuant to such dismantling will be subject to the cap set out in sub-clause (i) above; |
(e) | commence, construct or enter into commitment to construct Towers outside the annual business plan of the Company, except with the prior consent of the Executive Committee; |
(f) | neither terminate any Material Contract nor enter into any new agreement or contract similar to any Material Contract (other than as provided in 7.13.1(g) below) with any Person. It is clarified that nothing contained herein shall prohibit the Company from entering into MSAs, provided such MSAs are not on terms and conditions materially adverse to the Company than the terms of the existing MSAs or industry practice. |
(g) | not terminate any vendor contracts, which are Material Contracts, nor enter into any new agreement or contract similar to any such contract with any Person other than in the ordinary course of business. Vendor contracts, which are Material Contracts, other than in the ordinary course of business can be entered into with the prior written consent of the Executive Committee subject to an annual expenditure limit of Rs. 50,00,00,000 (Rupees Fifty Crores). |
(h) | neither cancel any debts nor waive any claims or rights of material value nor reverse any reserves in the Audited Financial Statements as of June 30, 2015 other than in accordance with the Accounting Principles; |
(i) | neither materially nor adversely alter any insurance policies in effect as of the date hereof for the Sites; |
(j) |
not make or commit to any capital expenditures at any existing Sites except for any replacement capital expenditures or expenditures incurred in relation to any new |
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Operators in the ordinary course of business or installation of new technology, or for cost saving purposes; |
(k) | neither enter into, nor become subject to, any Contract with any of the Companys executive officers, or directors or stockholders (whether direct or indirect), including any Contract providing for the furnishing of services to or by, providing for the rental of property, real, personal or mixed, to or from, providing for the lending or borrowing of money, providing for the leasing of property, to or from, or otherwise requiring payments, to or from, any such Person. It is clarified that this Clause 7.13.1(k) shall not apply to: (i) any existing rights and obligations under employment agreements with executive officers and directors; (ii) renewal or expansion of any existing Contracts with any executive officers, directors or stockholders (whether direct or indirect) of the Company on substantially similar terms and conditions as the existing Contracts while giving due consideration for expansion; and (iii) any new Contracts with the existing executive officers, or directors or stockholders (whether direct or indirect) of the Company, subject to an annualized aggregate limit of INR 5,00,00,000/- (Rupees Five Crores). |
(l) | not make any material changes in the financial terms of the employment agreements of any Senior Management Employee, other than in the ordinary course of business consistent with past practice. |
7.13.2 | Except as contemplated by, or required for implementation of, this Agreement or with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld), the Company shall: |
(a) | neither declare, pay nor set aside for payment any cash or non-cash dividend or other distribution in respect of any share capital , nor issue, sell, otherwise dispose of, reduce, split, repurchase nor redeem nor do such other acts in relation to its share capital or equity securities, nor reserve nor grant any options, warrants, calls, rights or commitments or any other agreements of any character obligating it to issue any shares of share capital or other equity securities provided that this Clause 7.13.2 shall not apply to the payment of dividend or to the redemption or conversion of preference shares issued under the Investment Agreement; |
(b) | neither make nor authorize any change, which will have an adverse effect on the transaction contemplated herein, in its certificate of incorporation or constitutional documents of the Company; |
(c) | neither materially change, nor permit to be materially changed, any accounting or Tax procedure or practice, nor make, nor permit to be made, any Tax election (other than as set forth in this Agreement) nor settle nor compromise any Tax liability, except as required due to a change in the applicable Law or to comply with an Order; |
(d) | pay all Taxes due and payable in a manner consistent with past practice, if required by applicable Law or pursuant to an Order, except if any Tax claim is contested before any Tax Authority or other Governmental Authority; |
(e) | provide the Purchaser with copies of the Monthly Management Financials, which shall be accompanied by the Companys then current net Liabilities as of the end of such month; |
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7.14 | The Company shall, as soon as may be commercially reasonable, commence the process for obtaining and use reasonable best endeavours to obtain prior to Completion, the Third Party Approvals set out in Schedule IV, including written consents from any Operators where the MSA requires such consent or notification to the Operator in connection with the transactions contemplated by this Agreement, the costs in connection with the receipt of such Third Party Approvals to be borne by the Company. Notwithstanding anything to the contrary herein, neither the Sellers nor the Company shall agree to, and the Purchaser shall not be obliged to accept, any third partys concessions in order to obtain any Third Party Approval, and the Parties shall discuss in good faith the waiver of the requirement for obtaining such Third Party Approval or any other reasonable means of obtaining of such Third Party Approval. TTSL hereby confirms that the execution of this Agreement shall be deemed to constitute the consent of TTSL and TTML under the terms of the MSAs which require the consent of TTSL and/ or TTML for the transfer of the Sale Shares to the Purchaser as contemplated under this Agreement. |
7.15 | Each Seller agrees that, for itself and its Affiliates, from and after the Completion, it will not use, other than in connection with the Company, the name Viom or any name substantially similar to it in any form whatsoever, including in respect of advertising and promotional materials. For the avoidance of doubt, it is hereby clarified that nothing in this Clause 7.15 shall restrict the Sellers or any of their Affiliates from referring to their past investment in the Company in any of their advertisements or promotional materials. Provided further that, the restrictions set out in this Clause 7.15 shall only apply to GIC Special Investments Pte Ltd and entities Controlled by it. |
8 | CONFIDENTIALITY |
8.1 | Each Party shall keep, and shall ensure that its Affiliates and their respective Representatives keep, all information relating to this Agreement and the transactions contemplated hereunder (collectively referred to as the Information ) confidential. None of the Parties shall issue, or permit any agent or Affiliate to issue, any public release or public announcement or otherwise make, or permit any agent or Affiliate to make, any disclosure concerning this Agreement or the transactions contemplated herein without the prior written approval of the other Parties (such consent not to be unreasonably withheld, conditioned or delayed). |
8.2 | Nothing in Clause 8.1 above shall restrict the Parties from disclosing Information for the following purposes: |
(a) | to the extent that such Information is in the public domain other than by breach of this Agreement; |
(b) | to the extent such information is later acquired by the receiving Party from another source if the receiving Party is not, following due inquiry, aware that such source is under an obligation to another Party to keep such documents and information confidential; |
(c) | to the extent such Information is disclosed solely for the purposes of fulfilment of the Partys obligations under Clause 2.4, 3 or Clause 7 above; |
(d) |
to the extent that such Information is required to be disclosed by any applicable Law or the rules or regulations of any applicable stock exchange or required to be disclosed to any Governmental Authority to whose jurisdiction the Parties are subject |
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or with whose instructions it is customary to comply; provided , however , that any such disclosure shall be made after due consultation and discussions with the other Parties; and |
(e) | insofar as it is disclosed to the employees, directors, shareholders or professional advisers of the Parties, including their Affiliates or other Representatives, as the case may be, or in the case of a entity which has been constituted as a fund, its limited partners, trustees and investment manager; provided , however , that each Party shall ensure that such persons treat such Information as confidential on the same terms as set out under this Clause 8. |
9 | INDEMNITY |
9.1 | Each Seller ( Title Indemnifying Seller ) shall indemnify, defend and hold harmless the Purchaser and its Affiliates (which become shareholders of the Company pursuant to Clause 2.1 above) and their respective officers and directors from and against any and all actual and direct losses, damages, costs (including interest and penalties with respect thereto), out-of-pocket expenses and reasonable attorneys fees (together, Losses ) severally, arising out of: |
(a) | any misrepresentation or any breach of its respective Sellers Warranties, |
(b) | any failure by it to perform or fulfil any of its respective undertakings or agreements required to be performed by it under this Agreement, |
(c) | any adverse impact on the title of the Purchaser to the Sale Shares pursuant to any statutory action or claim relating to the revelant Seller, |
provided that the total liability of a Title Indemnifying Seller to the Purchaser for any Losses suffered by it, or any claim for damages or any other remedies available to the Purchaser and its Affiliates (which become shareholders of the Company pursuant to Clause 2.1 above) in connection with Clause 9.1 shall not in the aggregate exceed an amount equivalent to the Purchase Consideration received by such Title Indemnifying Seller.
9.2 | TTSL and each of the Persons constituting the Kanoria Block (each, a Company Indemnifying Seller ) shall severally indemnify, defend and hold harmless the Purchaser and its director and personnel from and against any and all Losses arising out of: |
(a) | any misrepresentation or any breach of the Company Warranties, |
(b) | any failure by the Company to perform or fulfill any of the Companys undertakings or agreements required to be performed by the Company under this Agreement, other than: (i) the Companys obligations under Clause 7.13; (ii) the Other Company Warranties; and (iii) the Companys failure to obtain Third Party Approvals, which have been waived by the Purchaser, and |
(c) | any Taxes imposed, demanded or raised on or payable by the Company and which arise pursuant to a notice, claim, demand or Order received by the Company prior to the Execution Date in writing, and which have not been disclosed (i) in the Audited Financial Statements as of June 30, 2015; or (iii) in the Company Disclosure Schedule, (a Tax Loss ). |
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The Tax Loss shall be indemnifiable by the Company Indemnifying Sellers in accordance with the process set out in Clause 9.10 below.
Each Company Indemnifying Seller, to the extent it is required to provide any information which relates to its arrangements with the Company as shareholders of the Company, shall provide its reasonable assistance to the Purchaser in connection with the preparation and filing of any Tax Return of the Company and any audit or other proceeding in relation to the Company with respect to Taxes, including making representations to the best of their knowledge (as may be reasonably required) to or furnishing information available with it to the Company.
The amounts payable by the Company Indemnifying Sellers under this Clause 9.2 shall in each case, be determined in following manner:
A/B*C,
Where:
A = the number of Equity Shares sold by the Company Indemnifying Seller
B = the Sale Shares
C = the amounts payable to the Purchaser under this Clause 9.2 for a particular instance of Loss.
For illustration purposes :
If the Loss incurred by the Company is Rs. 100, the amount of Loss indemnifiable shall be Rs. 51 (corresponding to the shareholding transferred under this transaction to the Purchaser). Of this, Rs. 37.89 should be indemnifiable severally by TTSL and the Kanoria Block, for an amount of Rs. 19.63 and Rs. 18.26 respectively.
9.3 | Each of the Persons constituting the Kanoria Block (each a KB Indemnifying Seller ) shall severally indemnify, defend and hold harmless the Purchaser and its Affiliates from and against any and all Losses arising out of a breach or misrepresentation of the representation in Clause 6.5 in proportion to its share in the Sale Shares. |
For illustration purposes :
If the Loss is Rs. 100, the aggregate of the several liability of all members of the KB Indemnifying Sellers to indemnify the Purchaser and its Affiliates shall in aggregate be Rs. 18.26 only.
Provided that the total liability of Company Indemnifying Sellers or KB Indemnifying Seller (as the case may be) to the Purchaser (and such other Persons that may be indemnified under Clauses 9.2 and 9.3) for any Losses suffered by it, or any claim for damages or any other remedies available to the Purchaser (and such other Persons that may be indemnified under Clauses 9.2 and 9.3) in connection with Clauses 9.2 and 9.3 shall not in the aggregate exceed an amount equivalent to 15% of the Purchase Consideration received by Company Indemnifying Sellers or such KB Indemnifying Seller.
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9.4 | The obligation of the Indemnifying Sellers (as applicable) to indemnify the Purchaser shall: |
(a) | for any breach of the Sellers Warranties survive for a period of 3 (three) years from the Completion Date; |
(b) | for any breach of the Company Warranties survive for a period of 18 (eighteen) months from the Completion Date; |
(c) | for any breach of the representation provided by the Kanoria Block in Clause 6.5 survive for a period of 18 (eighteen) months from the Completion Date. |
9.5 | The total liability of an Indemnifying Seller to the Purchaser (and such other Persons that may be indemnified under Clauses 9.1, 9.2 and 9.3) for any Losses suffered by it, or any claim for damages or any other remedies available to the Purchaser (and such other Persons that may be indemnified under Clauses 9.1, 9.2 and 9.3) (to the extent applicable) in connection with this Agreement or the transactions contemplated herein, shall not, except for any matters indemnifiable under Schedule X hereof, in the aggregate exceed an amount equivalent to 100% of the Purchase Consideration received by such Indemnifying Seller. |
9.6 | Notwithstanding anything contained herein, the Purchaser shall not make any claims or proceed against any of the Sellers for a breach of Clause 6.4(b). Nothing herein shall affect the Purchasers rights against the Company for a breach of Clause 6.4(b). |
9.7 | The Indemnifying Seller shall not be liable for any indemnity claim pursuant to this Clause 9 if it receives or they receive from the Purchaser written notice later than sixty (60) days of the Purchaser becoming aware of the facts underlying the indemnity claim containing specific details of the indemnity claim, including the amount of the indemnity claim. Receipt of any notice by the Indemnifying Seller under this Clause 9 shall not be construed to be an acceptance by it of the validity of such claim. |
9.8 | If a breach of the representations or warranties is capable of remedy, the Purchaser shall give to the Indemnifying Seller a written notice of the breach and be entitled to compensation only if the breach is not remedied within 60 (sixty) days after the date on which such notice is served on the Indemnifying Seller. The Purchaser shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same claim. The Indemnifying Sellers shall not be liable to the Purchaser for any indirect, special or consequential damages, whether foreseeable or not (including lost profits or lost revenues), regardless of whether such liability arises in tort, contract, breach of warranty, indemnification or otherwise. |
9.9 | The Purchaser shall, acting in good faith, use its reasonable endeavours to mitigate Losses or Tax Losses. Where an Indemnifying Seller has made a payment to the Purchaser in relation to any indemnity claim under this Clause 9 and the Purchaser is entitled to recover (whether by payment, discount, credit, relief or otherwise) from a third party a sum which indemnifies or compensates the Purchaser (in whole or in part) in respect of Losses which are the subject of an indemnity claim under this Clause 9, the Purchaser shall (i) notify the Indemnifying Seller of the fact and provide such information as the Indemnifying Seller may reasonably require; and (ii) pay to the Indemnifying Seller, as soon as reasonably practicable, after receipt, an amount equal to the amount recovered from the third party (net of taxation and less any costs of recovery). |
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9.10 | Process and defence of proceedings |
9.10.1 | If any Person notifies the Purchaser with respect to any matter (a Third Party Claim ), in respect of which the Purchaser is entitled to make an indemnity claim under this Clause 9 or Clause 10 below against the Indemnifying Seller, then the Purchaser shall notify the Indemnifying Seller of such Third Party Claim, as soon as reasonably practicable, after receipt of notice of such Third Party Claim. |
9.10.2 | Without prejudice to the Purchasers right to be indemnified by the Indemnifying Seller under this Clause 9, the Indemnifying Seller shall have the right, at its own cost, to take any action and institute any proceedings to dispute, resist, appeal, compromise, defend, remedy or mitigate the Third Party Claim ( Defensive Action ), provided, however, that where the Indemnifying Seller does not respond to a notice from Purchaser of the Third Party Claim (stating that the Indemnifying Seller assumes control of such Defensive Action as aforesaid) within 30 days of receiving a notice of such Third Party Claim, the Purchaser shall have a right to institute such Defensive Action on its own and take the place of the Indemnifying Seller for such actions. Whether or not the Indemnifying Seller elects to defend any Third Party Claim, the Indemnifying Seller and the Purchaser shall cooperate and exercise all reasonable efforts in the defense or prosecution of any such claim and shall furnish one another with such records, information and testimony, and attend such conferences, proceedings, hearings, trials and appeals as may be reasonably required by the other in connection therewith. |
9.10.3 | Subject to Clause 9.10.2, the Purchaser shall not without the consent of the Indemnifying Sellers, consent to any settlement, waiver or understanding unless such settlement, waiver or understanding fully and unconditionally discharges the Indemnifying Sellers from their obligation to indemnify the Purchase for such Third Party Claims. |
9.11 | The Indemnifying Sellers shall not be liable in relation to the indemnity obligation set out in Clause 9.2 and 9.3, for any Loss, arising from any single incident (or series of claims arising from substantially identical facts or circumstances) that is less than INR 50,00,000 (Rupees Fifty Lakhs Only) in value (each such Loss below the aforesaid limit of INR 50,00,000 (Rupees Fifty Lakhs Only), being a De Minimis Loss ), it being clarified that, subject to the De Minimis Loss threshold being satisfied, the Purchaser shall be indemnified for the entire amount of such Loss and not merely the excess over the De Minimis threshold. The Indemnifying Sellers shall not be liable for any Loss in relation to the indemnity obligation set out in Clause 9.2 and 9.3, unless the aggregate of all such Losses (each such Loss not being a De Minimis Loss) exceeds INR 100,00,00,000 (One Hundred Crores) (the Threshold Loss ), after which the Indemnifying Sellers shall only be liable for Losses over and above the Threshold Loss. |
9.12 | It is hereby clarified that where, at any time after the Execution Date, any Seller is in breach of any Sellers Warranty as a consequence of any change in Law with retrospective effect (which change in Law shall have come into force after the Execution Date), then the representing Seller, shall not be held liable for such breach. |
9.13 | If any claim of the Purchaser against the Sellers is based upon a liability that is contingent only, then the Purchaser shall not be entitled to make a claim against the Sellers, unless and until such contingent liability gives rise to an obligation to make a payment including interest or penalty thereon. |
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10 | WITHOLDING TAX MATTERS |
10.1 | Each of the Non-Resident Sellers shall indemnify the Purchaser for any Tax Claim relating to withholding tax in accordance with Schedule X hereof, subject to the provisions of Clause 10.2, 10.3 and 10.4 below. |
10.2 | No later than seven (7) Business Days prior to the Completion Date, each Non-Resident Seller shall have delivered to the Purchaser (a) an opinion in a form reasonably satisfactory to the Purchaser from a Agreed Accounting Firm that no capital gains tax (and in case of Indivest, no income tax) shall be payable by the relevant Non-Resident Seller under IT Act on the transfer of the Sale Shares held by such Non-Resident Seller to the Purchaser as contemplated in this Agreement; and (b) certified true copy of its valid tax residency certificate issued to it by the relevant authority in the Republic of Mauritius (and, in the case of Indivest, a certified true copy of the certificate of residency issued to Indivest by the relevant authority in Singapore). |
10.3 | The Purchaser shall not deduct and withhold from the Purchase Consideration or any other amount payable under this Agreement, any amount as withholding tax in case of such Non-Resident Sellers as have provided the documents set out in Clause 10.2 above. Such Non-Resident Sellers shall provide the Purchaser the indemnity as set out at Clause 10.1 above read with Schedule X. |
10.4 | Where any of the Non-resident Seller/s have not provided the opinion and certificate referred to in Clause 10.2 above, the Purchaser shall be entitled to deduct from the Purchase Consideration, the applicable withholding tax, in accordance with applicable Law. In case of such Non-Resident Sellers, the indemnity provisions of this Clause 10 and Schedule X shall apply solely in respect of any Tax Claim arising due to a mis-statement or misrepresentation by such Non-Resident Seller in the information provided by such Non-Resident Seller to Purchaser for purposes of determining the capital gains computation. |
11 | FEES AND EXPENSES |
11.1 | Each Party agrees that it shall bear by itself all costs and expenses incurred by it in connection with any discussions, negotiations and investigations undertaken in connection with the subject matter hereof, including without limitation costs and expenses associated with the retention of financial, legal, tax and other professional advisers. Provided that, nothing in this Clause 11 shall be construed to require any of the Sellers to bear the fees of the investment bankers, which have been engaged by the Company. |
11.2 | Notwithstanding anything contained in Clause 11.1 above, all stamp charges, and any penalties, interest and additions thereto, incurred in connection with the transfer of the Sale Shares under this Agreement or the other transactions contemplated by or the execution of this Agreement shall be paid for and borne by the Purchaser. The applicable filing fee and economists costs (if any) in respect of the CCI Approval required under Clause 3.1(a) shall be shared equally among Purchaser on one hand and TTSL, TSL, IDFCPE III, MSIPL and SMIT on the other hand. The Sellers and the Purchaser shall cooperate in the timely making of all filings, returns, reports and forms as may be required in connection therewith. |
11.3 |
The Parties acknowledge and confirm that other than the Purchase Consideration and the fee for the non-compete obligations under Clause 7.10 set out in this Agreement, no other |
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amounts are being paid or are required to be paid by the Purchaser or any of the Sellers to any of the Sellers for the purposes of transfer of the Sale Shares by the Sellers to the Purchaser. |
12 | TERMINATION |
12.1 | This Agreement shall be effective from the Execution Date and shall continue to be valid and in full force and effect, unless terminated earlier in accordance with this Clause 12 of this Agreement. |
12.2 | This Agreement may be terminated: |
(a) | by mutual consent of the Parties in writing; |
(b) | automatically, if Completion does not take place by the Termination Date, unless the failure to consummate the Completion is due to the breach of this Agreement by the Party that is attempting to terminate this Agreement or its Affiliates; |
(c) | by any Party, if (i) any Order of any Governmental Authority preventing the consummation of the transactions contemplated by this Agreement shall have become final and non-appealable, (ii) any Law shall have rendered the transactions contemplated under this Agreement illegal, or (iii) FIPB or CCI approval is refused for the transactions contemplated by this Agreement and the grounds of such refusal by FIPB or CCI, as the case may be, are not capable of rectification by the Parties with their mutual agreement; |
(d) | by the Purchaser, if an Updated Company Disclosure Schedule provided by the Company contains any matters that would result in a Material Adverse Effect or would materially impair the ability of the Sellers to consummate the transaction contemplated herein. |
12.3 | Termination of this Agreement shall be without prejudice to any rights or obligations of any Party; provided , however , that, where this Agreement has been terminated, any Party may bring an action seeking only damages for a material breach of this Agreement prior to the Termination Date under Clause 12.2; provided , further , that, non-fulfillment of any of the Conditions Precedent in Clause 3 shall not, in and of itself, be considered a material breach of this Agreement and no Party shall be liable for such non-fulfillment (except to the extent such non-fulfillment constitutes a breach of Clause 7 or any undertaking hereunder). |
12.4 | Each notice given by a Party pursuant to Clause 12.2 to terminate this Agreement shall specify the subsection of Clause 12.2 pursuant to which such notice is given. If at the time a Party gives a termination notice, such Party is entitled to give such notice pursuant to more than one subsection of Clause 12.2, the subsection pursuant to which such notice is given and termination is effected shall be deemed to be the subsection specified in such notice; provided , however , that the Party giving such notice is at such time entitled to terminate this Agreement pursuant to the specified subsection. |
12.5 | Notwithstanding the above, Clauses 8, 12.5, 13, 14, 15, and 16 (except for 16.12) shall survive the termination of this Agreement. |
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13 | NOTICES |
13.1 | Each notice, demand, or other communication given or made under this Agreement shall be in writing and delivered or sent to the relevant Party at its address or fax number and e-mail address set out below (or such other address or fax number and e-mail address as the addressee has specified in writing to the other Parties). Any notice, demand or other communication given or made by letter between countries shall be delivered by registered airmail or international courier service. Any notice, demand, or other communication so addressed to the relevant Party shall be deemed to have been delivered if (i) delivered in person or by messenger, when proof of delivery is obtained by the delivering Party, (ii) sent by post within the same country, on the fifth day following posting, (iii) sent by post to another country, on the tenth day following posting, and (iii) given or made by fax, upon dispatch and the receipt of a transmission report confirming dispatch. |
13.2 | The initial address and facsimile for the Parties for the purposes of the Agreement are: |
If to the Purchaser:
Attention | : | ATC Asia Pacific Pte. Ltd. | ||
Address | : |
One Raffles Quay North Tower, Level 25, Singapore 048583 |
||
Telephone | : | 65 66225351 / 66225352 | ||
With Copies to | ||||
Attention | : | General Counsel | ||
Address | : |
American Tower International, Inc. 116 Huntington Ave., 11 th Floor, Boston, MA 02116 |
||
Telephone | : | 617-375-7500 | ||
Facsimile | : | 617-375-7575 | ||
Attention | : | Clifford Chance LLP | ||
Address | : |
31 West 52 nd Street New York, NY 10019 |
||
Telephone | : | 212-878-8000 | ||
Facsimile | : | +1 212 878 8375 |
If to the Purchaser Guarantor:
Address | : | American Tower Corporation | ||
116 Huntington Avenue, 11 th Floor | ||||
Boston, Massachusetts, U.S.A. 02116 | ||||
Attention | : | General Counsel | ||
Fax | : | (617) 375-7570 | ||
: | ed.disanto@americantower.com | |||
With Copies to | ||||
Attention | : | Clifford Chance LLP | ||
Address | : |
31 West 52 nd Street New York, NY 10019 |
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Telephone | : | 212-878-8000 | ||
Facsimile | : | +1 212 878 8375 |
If to the Company:
Address | : | D-2, 5th Floor, Southern Park, | ||
Saket Place, Saket, | ||||
New Delhi 110017, India | ||||
Attention | : | Company Secretary | ||
Telephone | : | 0124 - 66344703 | ||
: | geetapuri.seth@viomnetworks.com |
If to the Sellers, at the details provided at Schedule I against the name and description of each of the Sellers respectively.
14 | GOVERNING LAW |
14.1 | This Agreement and the documents to be entered into pursuant to it, and any non-contractual obligations arising out of or in connection with the Agreement and such documents, shall be governed by, and construed in accordance with, the substantive Laws of India without giving effect to the principles of conflict of Laws thereunder. |
14.2 | Any and all process may be served in any action or proceeding arising in connection with this Agreement by notice pursuant to Clause 13. The Parties hereby agree to waive all claims of error by reason of such service and that such service, if delivered, sent or mailed, shall constitute good, proper and sufficient service. Nothing herein shall affect the right of any Party to service process in any other manner permitted by Law or to commence legal proceedings or otherwise proceed against the other in any other jurisdiction to enforce judgments or rulings of the below mentioned arbitration process. |
14.3 | Subject to Clause 15 below, (a) the Courts in (i) Delhi and (ii) Mumbai, India shall have the jurisdiction to entertain and dispose of any proceeding arising out of or from this Agreement against any of the Sellers, (b) the Courts in the United States of America and India shall have the exclusive jurisdiction to entertain and dispose of any proceeding arising out of or from this Agreement or the ATC Guarantee, against the Purchaser, Purchaser Guarantor or American Tower Corporation provided, however, that nothing provided hereinabove shall restrict the ability of the Parties from enforcing any order/award in any other jurisdiction or forum. |
15 | DISPUTE RESOLUTION |
15.1 | Any and all disputes or differences among the Parties arising out of or in connection with this Agreement or its performance (other than in relation to Clause 10 and Schedule X relating to tax matters) shall, so far as it is possible, be settled amicably through consultation among the Parties. |
15.2 |
If after thirty (30) days of consultation, the disputing Parties have failed to reach an amicable settlement on any or all disputes or differences arising out of or in connection with this |
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Agreement or its performance, such disputes or differences shall be submitted to final and binding arbitration at the request of either of the disputing Parties upon written notice to that effect to the other. |
15.3 | Such arbitration shall be under and on the terms of the Arbitration and Conciliation Act, 1996 and shall be held in Delhi, India. All proceedings of such arbitration shall be in the English language. |
15.4 | The arbitration panel shall consist of three (3) arbitrators, one (1) arbitrator to be appointed by the Sellers jointly, one (1) arbitrator to be appointed by the Purchaser and the third (3 rd ) arbitrator, who shall serve as chairman, to be appointed jointly by the other two (2) arbitrators. |
15.5 | The arbitration panel shall have the power to order any interim or conservatory measures that it deems appropriate. |
15.6 | If multiple disputes arise out of or in connection with this Agreement or its performance then any or all such disputes may be determined in a single arbitration. |
15.7 | In the event that an arbitration under this Agreement or its performance has commenced and is still pending (the Pending Arbitration ), when any other arbitration is commenced under any of such documents, each disputing Party hereby agrees that the arbitration panel in the Pending Arbitration shall have the power to order consolidation of the subsequently commenced arbitration with the Pending Arbitration (together, the Consolidated Arbitration ), where the request for consolidation is made prior to (i) the exchange of the final written pleadings (excluding post-hearing briefs, or equivalent), or (ii) the commencement of the final hearing on the merits in the Pending Arbitration (if any), whichever is the later, and the arbitration panel in the Pending Arbitration, in its absolute discretion, determines that: |
(a) | the arbitrations relate to substantially similar questions of law or of fact; |
(b) | no Party would be unduly prejudiced; and |
(c) | consolidation under these circumstances would not result in undue delay for any of the arbitrations. |
15.8 | The arbitration panel in the Consolidated Arbitration shall consist of three (3) arbitrators, one (1) arbitrator to be appointed by the Sellers jointly, one (1) arbitrator to be appointed by the Purchaser and the third (3 rd ) arbitrator, who shall serve as chairman, to be appointed jointly by the other two (2) arbitrators. |
15.9 | The Parties agree that upon consolidation, they will promptly dismiss any arbitration brought under this Agreement or its performance, the subject of which has been consolidated into a Consolidated Arbitration in accordance with this Clause 15. |
15.10 | Nothing shall preclude any Party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to pursue any remedy for monetary damages through the arbitration described in this Clause 15. |
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16 | MISCELLANEOUS |
16.1 | No Partnership |
Nothing contained in this Agreement shall create or be deemed to create a partnership or association of persons between or among the Parties, and no Party shall hold itself out as an agent for any other Party, except with the express prior written consent of the other Party.
16.2 | Remedies, Waivers, Amendments and Consents |
(a) | Unless otherwise provided for in this Agreement, no failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by Law. |
(b) | Any provision of this Agreement may be amended only if all Parties so agree in writing. Any waiver, and any consent by any of the Parties under any provision of this Agreement, must be in writing and may be given subject to any conditions thought fit by the person giving that waiver or consent. Any waiver or consent shall be effective only in the instance and for the purpose for which it is given. |
16.3 | Entire Agreement |
This Agreement (together with any other documents referred to herein or therein) constitutes the whole agreement among the Parties relating to the subject matter hereof to the exclusion of any terms implied by law that may be excluded by contract and supersedes any prior agreements or understandings relating to such subject matter, including the indicative term sheet dated October 3, 2014 entered into between the Parties.
16.4 | Invalidity |
(a) | If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties. |
(b) | To the extent it is not possible to delete or modify the provision, in whole or in part, under Clause 16.4(a), then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under Clause 16.4(a), not be affected. |
16.5 | Successors Bound |
This Agreement shall be binding on and shall inure to the benefit of and be enforceable by the successors and permitted assigns of each of the Parties hereto.
16.6 | Counterparts |
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This Agreement may be executed in one or more counterparts including counterparts transmitted by facsimile or e-mail, each of which shall be deemed to be an original, but all of which signed and taken together, shall constitute one document.
16.7 | Time |
Any date or period as set out in any Clause of this Agreement may be extended with the written consent of the Parties.
16.8 | Good Faith |
Each of the Parties hereto undertakes to do, in good faith, all things reasonably within its power which are necessary or desirable to give effect to the spirit and intent of this Agreement.
16.9 | Independent Rights and Obligations |
Each of the rights of the Parties under this Agreement are independent, cumulative and without prejudice to all other rights available to them, and the exercise or non-exercise of any such rights shall not prejudice or constitute a waiver of any other right of the Party, whether under this Agreement or otherwise.
16.10 | Assignment |
None of the Parties shall be entitled to assign its rights, benefits, privileges, liabilities or obligations under this Agreement without the prior written consent of the other Parties, except that: (i) the Purchaser may assign any or all of its rights, interests and obligations under this Agreement before Completion to any Affiliate provided that any such Affiliate agrees in writing to be bound by all of the terms, conditions and provisions contained in this Agreement (and the Transaction Documents, to the extent applicable), but no such assignment shall relieve the Purchaser of its obligations under this Agreement and the Transaction Documents and if such assignee does not perform such obligations, shall be deemed to be a party to this Agreement and the Transaction Documents; and (ii) each member of the Kanoria Block and TTSL may assign any or all of their respective rights, interests and obligations under this Agreement before Completion to any of their respective Affiliates (or TOF in case of TTSL), provided that in each case, any such Affiliate agrees in writing to be bound by all of the terms, conditions and provisions contained in this Agreement (and the Transaction Documents, to the extent applicable), provided however that SREI, QTIPL, Mr. Sunil Kanoria and TTSL shall continue to be party to this Agreement and shall continue to be subject to their obligations hereunder. If requested by the Purchaser, the Sellers agree to cause the Sale Shares or any portion thereof at Completion to be transferred to any Affiliate of the Purchaser, the Purchaser may direct. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties to this Agreement and their respective successors and assigns. Further, the Purchaser may collaterally assign its respective rights and interests under this Agreement to any financial institution providing secured debt financing to the Purchaser or any of its respective Affiliates, subject to the prior written consent of the Sellers. Upon such permitted assignment, the references in this Agreement to the Purchaser, respectively, shall also apply to any such assignee unless the context otherwise requires.
16.11 | Reasonableness |
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Each of the Sellers and the Purchaser confirms it has received independent legal advice relating to all the matters provided for in this Agreement, including the terms of Clause 16.3, and agrees that the provisions of this Agreement (including the Sellers Disclosure Schedule, Company Disclosure Schedule and all documents entered into pursuant to this Agreement) are fair and reasonable.
16.12 | Guarantee |
(a) | The Purchaser Guarantor hereby agrees that if the Purchaser fails to make the payment of the Purchase Consideration when it is due under or pursuant to this Agreement (after giving effect to all applicable grace, notice and/or cure periods), the Purchaser Guarantor shall pay such amount to the Sellers. |
(b) | Subject to Clause 16.12(e), the Purchaser Guarantors obligations under this Clause 16.12 will not be affected by any matter or thing that, but for this provision, might operate to affect or prejudice those obligations, including without limitation: |
(i) | any time or indulgence granted to, or composition with, the Purchaser or any other person; |
(ii) | the taking, variation, renewal or release of, or neglect to perfect or enforce this Agreement, or any right, guarantee, remedy or security from or against the Purchaser or any other person; or |
(iii) | any variation or change to the terms of this Agreement. |
(c) | Until the Purchase Consideration has been paid in full, the Purchaser Guarantor will neither take nor hold any security from the Purchaser in respect of this Agreement and any such security which is held in breach of this provision will be held by the Purchaser Guarantor in trust for the Sellers. |
(d) | The provisions of this Clause 16.12 may, with the prior written consent of the Sellers, and, subject to Clause 16.12(e), be enforced by the Sellers against the Purchaser Guarantor. |
(e) | The Sellers shall have no greater rights against the Purchaser Guarantor than it has against the Purchaser under this Agreement. |
(f) | The provisions of this Clause 16.12 may be varied or terminated by agreement between the Parties (and the Sellers may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause without the consent of the Purchaser). |
(g) | The Purchaser Guarantor warrants to the Sellers that: |
(i) | it is validly existing and is a company duly incorporated under the law of its jurisdiction of incorporation; |
(ii) | it has the legal right and full power and authority to enter into and perform its obligations under this Agreement; |
49
(iii) | its execution of, and the compliance with, the terms of this Agreement does not and will not conflict with or constitute a default under any provision of: |
(A) | any agreement or instrument to which it is a party; or |
(B) | its constitutional and corporate documents; or |
(C) | any order, judgment, decree or regulation or any other restriction of any kind by which the Purchaser Guarantor is bound; |
(iv) | this Agreement will, when executed, constitute a legal, valid and binding obligation on the Purchaser Guarantor, in accordance with its respective terms, subject only to creditors rights; |
(v) | it has duly executed this Agreement and has taken all corporate action required by it to authorise it to enter into and to perform this Agreement; and |
(vi) | it has, and will continue to have for the duration of this Agreement, sufficient assets and resources for the performance of its obligations under this Agreement and in particular for the payment of the Purchase Consideration when it is due and payable pursuant to the terms of this Agreement. |
(h) | The Purchaser and the Purchaser Guarantor shall ensure that American Tower Corporation shall back the guarantee obligations of the Purchaser Guarantor under this Clause 16.12 and issue the ATC Guarantee to the Sellers as of the Execution Date. |
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IN WITNESS WHEREOF , the Parties have entered into this Agreement on the day and year first above written.
ATC ASIA PACIFIC PTE. LTD. | ||
/s/ E DMUND D I S ANTO |
||
Authorised Signatory | ||
Name: |
Edmund DiSanto |
Designation: |
Director |
AMERICAN TOWER INTERNATIONAL, INC. | ||
/s/ E DMUND D I S ANTO |
||
Authorised Signatory | ||
Name: |
Edmund DiSanto |
Designation: |
EVP |
(This page intentionally left blank. Signature pages follow)
51
TATA TELESERVICES LIMITED | ||
/s/ S RINATH N ARASIMHAN |
||
Authorised Signatory | ||
Name: |
Srinath Narasimhan |
Designation: |
Managing Director |
(This page intentionally left blank. Signature pages follow)
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SREI INFRASTRUCTURE FINANCE LIMITED | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory | ||
Name: |
Sanjeen Sancheti |
Designation: |
Chief Strategy Officer |
|
MR. SUNIL KANORIA | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory |
Name: |
Sanjeen Sancheti |
|
RESURGENT INFRATEL PRIVATE LIMITED | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory | ||
Name: |
Sanjeen Sancheti |
|
OPTIMUM INFRATEL PRIVATE LIMITED | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory | ||
Name: |
Sanjeen Sancheti |
QUIPPO TELECOM INFRASTRUCTURE PRIVATE LIMITED | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory | ||
Name: |
Sanjeen Sancheti |
|
CONFIDENT SOLAR PRIVATE LIMITED | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory | ||
Name: |
Sanjeen Sancheti |
|
RIGHT TOWERS PRIVATE LIMITED | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory | ||
Name: |
Sanjeen Sancheti |
|
MR. AJAY KUMAR AGARWAL | ||
(TRUSTEE-AKSYAKALA TRUST) | ||
/s/ S ANJEEN S ANCHETI |
||
Authorised Signatory | ||
Name: |
Sanjeen Sancheti |
53
FUNDERBURK MAURITIUS LIMITED. | ||
/ S / G ERARD A MAL W AHAB |
||
Authorised Signatory |
||
Name: |
Gerard Amal Wahab |
Designation: |
Director |
/s/ N IGEL G OVETT |
||
Authorised Signatory | ||
Name: |
Nigel Govett |
Designation: |
Director |
(This page intentionally left blank. Signature pages follow)
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INDIVEST PTE LTD | ||
/s/ S URESH B ALASUBRAMANIAN |
||
Authorised Signatory | ||
Name: |
Suresh Balasubramanian |
Designation: |
Director |
(This page intentionally left blank. Signature pages follow)
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IDFC PRIVATE EQUITY FUND II | ||
/s/ S ATISH M ANDHANA |
||
Authorised Signatory | ||
Name: |
Satish Mandhana |
Designation: |
Managing Partner and CIO |
(This page intentionally left blank. Signature pages follow)
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THE INFRASTRUCTURE FUND OF INDIA, LLC | ||
/s/ K APILDEO J OORY |
||
Authorised Signatory | ||
Name: |
Kapildeo Joory |
Designation: |
Director |
(This page intentionally left blank. Signature pages follow)
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AMP CAPITAL ASIAN GIANTS INFRASTRUCTURE FUND | ||
/s/ K APILDEO J OORY |
||
Authorised Signatory | ||
Name: |
Kapildeo Joory |
Designation: |
Director |
(This page intentionally left blank. Signature pages follow)
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EVEREST CAPITAL (M) LTD. | ||
/s/ W. G AGE M C A FEE |
||
Authorised Signatory | ||
Name: |
W. Gage McAfee |
Designation: |
Director |
(This page intentionally left blank. Signature pages follow)
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INDIA INFRASTRUCTURE FUND | ||
/s/ M AYANR B ANSAL |
||
Authorised Signatory | ||
Name: |
Mayanr Bansal |
Designation: |
Director - Infrastructure |
(This page intentionally left blank. Signature pages follow)
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VIOM NETWORKS LIMITED |
||
/ S / S YED S AFANI |
||
Authorised Signatory | ||
Name: |
Syed Safani |
Designation: |
CEO |
/ S / S HIRISHI M ANIAR |
||
Authorised Signatory | ||
Name: |
Shirishi Maniar |
Designation: |
CFO |
61
Exhibit 10.53
DATED OCTOBER 21, 2015
SHAREHOLDERS AGREEMENT
BY AND AMONGST
VIOM NETWORKS LIMITED
AND
TATA SONS LIMITED
AND
TATA TELESERVICES LIMITED
AND
IDFC PRIVATE EQUITY FUND III
AND
MACQUARIE SBI INFRASTRUCTURE INVESTMENTS PTE LIMITED
AND
SBI MACQUARIE INFRASTRUCTURE TRUST
AND
ATC ASIA PACIFIC PTE. LTD.
TABLE OF CONTENTS
Page | ||||||
1. |
DEFINITIONS AND INTERPRETATION | 2 | ||||
2. |
EFFECTIVE DATE | 20 | ||||
3. |
REPRESENTATIONS AND WARRANTIES AND COVENANTS | 20 | ||||
4. |
MANAGEMENT OF THE COMPANY | 22 | ||||
5. |
SHAREHOLDERS MEETINGS | 30 | ||||
6. |
AFFIRMATIVE VOTE MATTERS | 31 | ||||
7. |
DEADLOCK | 32 | ||||
8. |
IIF PREFERENCE SHARES | 33 | ||||
9. |
INFORMATION, ACCOUNTING RECORDS AND AUDIT | 34 | ||||
10. |
PRE-EMPTIVE RIGHTS OF SHAREHOLDERS | 37 | ||||
11. |
TRANSFERS OF SHARES | 39 | ||||
12. |
PUT OPTION | 54 | ||||
13. |
MACQUARIE PUT/CALL OPTION & IDFC EXIT | 56 | ||||
14. |
CALL OPTION | 57 | ||||
15. |
EXIT OPTION - QUALIFIED IPO | 58 | ||||
16. |
FINANCING | 61 | ||||
17. |
NON-COMPETE AND NON-SOLICITATION | 62 | ||||
18. |
TERMINATION | 64 | ||||
19. |
COSTS AND EXPENSES | 64 | ||||
20. |
CONFIDENTIALITY | 64 | ||||
21. |
CHARTER DOCUMENTS | 65 | ||||
22. |
MISCELLANEOUS | 65 | ||||
23. |
GOVERNING LAW AND ARBITRATION | 71 | ||||
24. |
DISPUTE RESOLUTION | 72 | ||||
25. |
SUBSIDIARIES OF THE COMPANY | 73 | ||||
26. |
TATA BRAND | 73 | ||||
27. |
NO CONFLICT OBLIGATIONS OF MIRA | 73 | ||||
SCHEDULE 1 THE COMPANY |
1-1 | |||||
SCHEDULE 1A SHAREHOLDING PATTERN OF THE COMPANY PRIOR TO THE EFFECTIVE DATE |
1-3 | |||||
SCHEDULE 1B SHAREHOLDING PATTERN OF THE COMPANY AFTER TO THE EFFECTIVE DATE |
1-5 |
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SCHEDULE 2 AFFIRMATIVE VOTE MATTERS | 2-1 | |||||
SCHEDULE 3 FORM OF DEED OF ADHERENCE | 3-1 | |||||
SCHEDULE 4 INDIAN AUDIT FIRMS | 4-1 | |||||
SCHEDULE 5 IMPORTANT MANAGERIAL POSITIONS | 5-1 | |||||
SCHEDULE 6 DETERMINATION OF FAIR MARKET VALUE | 7-1 |
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THIS SHAREHOLDERS AGREEMENT (this Agreement ) is executed at New Delhi on this 21 st day of October, 2015 (the Execution Date ),
BY AND AMONGST:
1. | VIOM NETWORKS LIMITED , a company incorporated under the laws of India having its registered office at D-2, 5th Floor, Southern Park, Saket Place, Saket, New Delhi 110017, India (hereinafter referred to as the Company , which expression shall, unless the context otherwise requires, mean and include its successors and permitted assigns) of the FIRST PART ; |
2. | TATA SONS LIMITED , a company incorporated under the (Indian) Companies Act, 1913 and having its registered office at Bombay House, 24, Homi Mody Street, Mumbai 400 001, India (hereinafter referred to as TSL , which expression shall, unless the context otherwise requires, mean and include its successors and permitted assigns) of the SECOND PART ; |
3. | TATA TELESERVICES LIMITED , a company incorporated under the (Indian) Companies Act, 1956 and having its registered office at Jeevan Bharati Tower I, 10th Floor, 124, Connaught Circus, New Delhi 110001, India (hereinafter referred to as TTSL , which expression shall, unless the context otherwise requires, mean and include its successors and permitted assigns) of the THIRD PART ; |
4. | IDFC PRIVATE EQUITY FUND III , a unit scheme of the IDFC Infrastructure Fund 3 (being a trust created under the Indian Trusts Act, 1881 and registered as a venture capital fund with the Securities Exchange Board of India under the Securities and Exchange Board of India (Venture Capital Funds) Regulations, 1996) and whose office is at 201, Naman Chambers, C-32, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India, of which IDFC Trustee Company Limited, whose registered office is at 201, Naman Chambers, C-32, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India, is a trustee and represented by IDFC Alternatives Limited, a company incorporated in India and whose registered office is at 101, Naman Chambers, C-31, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India, acting in its capacity as the investment Manager of IDFC Private Equity Fund III, (hereinafter referred to as the IDFCPE III , which expression shall, unless the context otherwise requires, mean and include its successors and permitted assigns) of the FOURTH PART ; |
5. | MACQUARIE SBI INFRASTRUCTURE INVESTMENTS PTE LIMITED , a company incorporated under the laws of Singapore and whose registered office is at 10 Marina Boulevard, #17-01 Tower 2, Marina Bay Financial Centre Singapore 018983 (hereinafter referred to as MSIIPL which expression shall, unless the context otherwise requires, mean and include its successors and permitted assigns) of the FIFTH PART ; |
6. |
SBI MACQUARIE INFRASTRUCTURE TRUSTEE PRIVATE LIMITED as the trustees of SBI MACQUARIE INFRASTRUCTURE TRUST , a trust within the meaning of the Indian Trusts Act, 1882, having its address at 92, 2 North Avenue, Maker Maxity, Bandra Kurla Complex, Bandra (E), Mumbai400051, India, (hereinafter |
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referred to as SMIT which expression shall, unless the context otherwise requires, mean and include its permitted assigns) of the SIXTH PART ; and |
7. | ATC ASIA PACIFIC PTE. LTD. , a company incorporated under the laws of Singapore whose registered office is at One Raffles Quay, North Tower, Level 25, Singapore 048583 (hereinafter referred to as the Investor which expression shall, unless the context otherwise requires, mean and include its successors and permitted assigns) of the SEVENTH PART . |
The Company, IDFCPE III, TTSL, TSL, MSIIPL, SMIT and the Investor shall hereinafter collectively be referred to as Parties and individually referred to as a Party .
WHEREAS:
(A) | The Company is a public limited company and is presently engaged in the business of providing passive infrastructure (pursuant to IP-1 Registration) and facilities related to telecommunication. Incorporation details of the Company have been provided as Schedule 1; |
(B) | The Investor has agreed to become a Shareholder ( defined below ) pursuant to the purchase of Sale Shares ( defined below ) from TTSL, IDFCPE II, SREI Infrastructure Finance Limited, Confident Solar Private Limited, Optimum Infratel Private Limited, Right Towers Private Limited, Resurgent Infratel Private Limited, Aksayakala Trust, Quippo Telecom Infrastructure Private Limited, Mr. Sunil Kanoria, Indivest Pte Limited, India Infrastructure Fund, Funderburk Mauritius Limited, Everest Capital (M) Limited, AMP Capital Asian Giants Infrastructure Funds and Infrastructure Fund of India LLC, in accordance with the share purchase agreement dated on or around the date hereof, 2015, ( Share Purchase Agreement ). As of the Execution Date, the issued, subscribed and outstanding equity share capital of the Company is held in the proportion mentioned in Schedule 1A; and |
(C) | The Parties have agreed to execute this Agreement to record the terms and conditions on which the Parties will participate in the affairs of the Company, the terms which would govern their relationship in respect of the management and governance of the Company, and their mutual rights and obligations as Shareholders. The rights, duties, obligations and liabilities of the Parties shall be as set out in this Agreement and as provided in the Charter Documents ( defined below ). |
NOW THEREFORE , in consideration of the mutual covenants and promises contained herein and other good and valuable consideration the receipt and adequacy of which is acknowledged, it is hereby agreed by and between the Parties and this Agreement witnesseth as under:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
In this Agreement, in addition to the terms defined in the introduction to, recitals of and
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the text of this Agreement, whenever used in this Agreement, unless repugnant to the meaning or context thereof, the following capitalized words and terms shall have the meanings set forth below:
Accounting Principles shall mean generally accepted accounting principles in India as set forth in pronouncements of the Institute of Chartered Accountants of India and in the Companies Act and as in effect from time to time, as modified and as agreed hereunder and as consistently applied by the Company;
Accounts shall mean the accounts of the Company, prepared in accordance with the Accounting Principles, including the relevant balance sheets and profit and loss accounts together with all documents which are or would be required by applicable Law to be annexed to the accounts of the Company, to be laid before the Company in the General Meeting for the relevant Financial Year;
Adjourned General Meeting shall have the meaning given to the term in Clause 5.4;
Adjourned Meeting shall have the meaning given to the term in Clause 4.5.1;
Affiliate with respect to any Person, shall mean any other Person that is directly or indirectly, or through one or more intermediate Persons, Controlling, Controlled by, or under the common Control of such Person from time to time, it being clarified that for the purposes of this Agreement, TTML and TOF shall be deemed to be an Affiliate of TTSL and TSL;
Affirmative Vote Matter shall mean each of the matters listed in Schedule 2 herein;
Agreement shall have the meaning given to it in the Preamble;
Allowed Transaction shall mean any purchase or other acquisition of towers not exceeding: (A) four thousand (4,000) towers in the Financial Year 2017; and (B) a number equal to ten percent (10%) of the aggregate number of towers then operated or managed by the Company in respect of any subsequent Financial Years; provided , however , that such annual limitation shall: (a) not apply to any transaction (i) pending at Completion, (ii) undertaken by any direct or indirect subsidiary of American Tower Corporation in India other than the Company subject to the terms of the Implementation Agreement; and (b) be cumulative, with any amount remaining at the end of a Financial Year (including the Financial Year ending March 31, 2017) rolling into the subsequent Financial Years;
American Tower Corporation shall mean American Tower Corporation, a company incorporated under the laws of the United States of America and having its registered office at 116 Huntington Avenue, Boston, Massachusetts, U.S.A.;
American Tower International Inc. or ATII shall mean American Tower International Inc., a company incorporated in the State of Delaware, United States of America, whose registered office is at 1209 Orange Street, Wilmington, County of New Castle;
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Annual Business Plan means the business plan prepared by the Company, and reviewed and approved by the Board, with respect to every Financial Year in relation to the Company, containing in each case: (a) full particulars of the operating performance budget, (b) the key performance indicators applicable to a company engaged in a business similar to the Business, including, inter-alia , details in relation to borrowing, capex and total indebtedness of the Company for the concerned Financial Year, and (c) information regarding market conditions and strategic considerations as the Board may deem fit;
Anti-Bribery Laws means the US Foreign Corrupt Practices Act, 15 U.S.C. §78-dd-1, et seq. , and the anti-corruption laws of India, as existing at the time of execution of this Agreement or otherwise existing at the time a relevant action was taken;
Articles of Association means the articles of association of the Company, as subsequently amended from time to time;
ATC India Entities means the Investors and its Affiliates subsidiaries (existing as well as those acquired or incorporated prior to Completion) in the Territory engaged in telecom infrastructure business operations;
Audit Committee shall have the meaning given to the term in Clause 4.7.1;
Audited Financial Statements shall mean the standalone and consolidated audited financial statements of the Company for the period for which such financial statements pertain (including the balance sheet, profit and loss account, the notes to the financial statements, the directors report, the auditors report and all disclosures as prescribed in Schedule III of the Companies Act of India), along with all related audited statements of income, sources and uses of cash, Share Capital and reserves for such period;
Banking Regulation Act shall mean the Indian Banking Regulation Act, 1949, as amended from time to time and as supplemented by the rules and regulations issued thereunder;
Big Four means any of KPMG, PriceWaterhouse Coopers, Deloitte & Touche and Ernst & Young, acting through or represented by their respective audit teams or affiliate audit firms permitted to practice in the Territory under the regulations of the Institute of Chartered Accountants of India;
Board means the board of directors of the Company;
Board Meeting Quorum shall have the meaning given to the term in Clause 4.5.1;
Business means the telecommunications infrastructure business of the Company in relation to erecting, maintaining and providing space on telecom towers, whether ground based towers, rooftop towers, poles or other types of towers and the telecommunications facilities, including DAS in the Territory situated at various tower sites (forming part of the property), to users for installation of communications equipment;
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Business Day means a day (other than a Saturday or Sunday) on which banks are generally open in Mumbai, Delhi, Singapore and Boston for normal business transactions;
Call Option shall have the meaning given to the term in Clause 14.1;
Call Option Completion Date shall have the meaning given to the term in Clause 14.2;
Call Option Consideration shall mean, with respect to each Party, the number of Call Option Shares being sold by it multiplied by the Call Option Price;
Call Option Exercise Notice shall have the meaning given to the term in Clause 14.1;
Call Option Price shall mean the price per Equity Share that is the higher of:
(a) | the applicable Per Share Fair Market Value; |
(b) | the per share price paid by the Investor to the selling shareholders under the Share Purchase Agreement, being Rs. 216 (Rupees two hundred and sixteen) per Share as adjusted for stock splits, bonus issues, consolidation or other similar capital restructuring which occurs after Completion; and |
(c) | the minimum price prescribed under the applicable Law, if any; |
provided that in the event that a Call Option is exercised with respect to a Third Party transferee that acquires Shares from TTSL, TSL or IDFCPE III (as applicable), the Call Option Price shall mean the price per Equity Share that is the applicable Per Share Fair Market Value;
Call Option Seller shall have the meaning given to the term in Clause 14.2;
Call Option Shares shall have the meaning given to the term in Clause 14.2;
Charter Documents means collectively the memorandum of association and the Articles of Association of the Company;
Clawback Subscription means the subscription to Equity Shares at the applicable Per Share Fair Market Value by the Investor to maintain its Shareholding greater than fifty percent (50%) in circumstances where its Shareholding is not in excess of fifty percent (50%) as a consequence of a breach of any warranties or covenants by any of the sellers under the Share Purchase Agreement in relation to the Sale Shares;
COC Call Option shall have the meaning given to the term in Clause 11.10.4;
COC Put Option shall have the meaning given to the term in Clause 11.10.1;
Combination shall mean the combination of the Companys Business with the telecommunications infrastructure business operations of the ATC India Entities, in the
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manner and on the terms agreed amongst the Investor, TTSL, TSL, IDFCPE III, MSIIPL and SMIT, and other transactions contemplated under the Implementation Agreement;
Combination MOU shall mean the memorandum of understanding of even date, executed between American Tower International, Inc., ATC Asia Pacific Pte. Ltd., Transcend Infrastructure Holdings Pte. Ltd., ATC Asia Holding Company, LLC, American Tower Mauritius, , TTSL, TSL, MSIIPL, SMIT, and IDFCPE III, setting out, inter alia, the guiding principles for the Combination and key terms and conditions to be included in the Implementation Agreement, including the principles for determination of the swap ratio for the proposed Combination and principles to ensure that there is no conflict of interest between the Investor, on the one hand, and the Company, the TTSL, TSL, MSIIPL, SMIT and IDFCPE III, on the other;
Companies Act shall mean the Indian Companies Act, 1956 and the Companies Act, 2013, as applicable, and, as amended from time to time and as supplemented by the rules and regulations issued thereunder;
Company shall have the meaning given to the term in the Preamble;
Competitor means any Person that is directly or indirectly (including through an Affiliate), engaged in the Territory in (a) the telecommunications infrastructure business in relation to erecting, maintaining and providing space on telecom towers, whether ground based towers, rooftop towers, poles or other types of towers and the communications passive infrastructure facilities situated at various tower sites (forming part of the property), to users for installation of telecommunications equipment in the Territory; or (b) a telecommunications business similar to the business of TTSL in the Territory. Provided , however , that a Competitor shall not include (x) any Affiliate of the Investor subject to the terms of the Implementation Agreement, or (y) TSL and or its Affiliates;
Provided that, notwithstanding the aforesaid, Competitor shall not include any Person who is a Financial Investor and the term Financial Investor for the purpose of this definition shall mean the following Persons:
(a) | any banking company within the meaning of the Banking Regulation Act; |
(b) | any foreign bank; |
(c) | any financial institutions including any investment banks, non-banking financial companies, core investment companies, stock brokers, merchant bankers, insurance companies, and other financial intermediaries which are regulated by a financial services regulator in the relevant jurisdiction; |
(d) | foreign portfolio investors or alternative investment funds registered under relevant SEBI Regulations or any other category of financial investor registered with SEBI or any other regulator in any jurisdiction; |
(e) |
investment funds (whether as trusts, body corporate or limited liability |
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partnerships or otherwise) set up with the primary objective of making financial investments or to invest capital and fund managers (including mutual funds, venture capital funds, hedge funds, bond funds, balanced funds, private equity funds, foreign venture capital investors, buy-out funds, pension funds or corporate funds or any other funds); |
(f) | special purpose vehicles or investment companies Controlled directly or indirectly, by such entities referred to in (a) to (e) above; |
It is hereby agreed that any investment company (including any core investment company) established either as a holding company (as a direct parent of such investment company or through a layer of special purpose vehicles) or as a direct or indirect subsidiary company of such Competitor for the purposes of acquiring the Securities shall be deemed to be a Competitor;
Completion shall mean the completion of the transfer of Sale Shares to the Investor in accordance with the Share Purchase Agreement;
Completion Date shall mean the date on which the Completion occurs;
Confidential Information shall have the meaning given to the term in Clause 20.1;
Consent of a Shareholder shall mean (a) in relation to any action or decision of the Shareholders, the affirmative vote of such Shareholder or its representative; (b) in relation to any action or decision of the Board or its committees, the affirmative vote of the Director nominated by such Shareholder, whether at a meeting of the Board, its committees or Shareholders, or by prior written notice;
Consolidated Arbitration shall have the meaning given to it in Clause 24.7;
Continuing Shareholders shall mean TTSL, TSL, MSIIPL, SMIT and IDFCPE III;
Controlling , Controlled by or Control with respect to any Person, shall mean (a) ownership or control (whether directly or indirectly) of more than fifty (50%) of the total equity share capital or voting capital or the like of the controlled entity, whether by shareholding or contract or otherwise; or (b) control of, or the power to control (whether by vote or composition) the board of directors or equivalent or analogous body of the controlled entity, and the terms controlling and controlled shall be correspondingly construed;
CSR Committee shall have the meaning given to the term in Clause 4.7.1;
Dark Fiber shall mean any optical fiber cable installed in a point to point or point to multipoint or in mesh topology but without any termination on active electronics or active equipment and does not carry any signals or traffic;
DAS means, whether implemented indoors or outdoors, a distributed antenna system, i.e., a type of IBS implemented through distributed passive antennae elements connected
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to a central location that contains the main radio units and ancillary equipment that generate wireless signals through RF cables throughout the building to enhance the wireless coverage/capacity & quality of licensed spectrum or unlicensed spectrum;
Deadlock Appointee shall have the meaning given to the term in Clause 7.1;
Deadlock Matter shall have the meaning given to the term in Clause 7.1;
Deed of Adherence means a deed in the form set out in Schedule 3;
Default Annual Business Plan shall mean the Annual Business Plan deemed to be approved in accordance with Clauses 4.9.1 and 4.9.2;
Default Tag Right shall have the meaning given to the term in Clause 15.2.2;
Definitive Agreements shall collectively mean the Share Purchase Agreement, this Agreement, the Implementation Agreement and the Shareholders Agreement Put Obligation Performance Guarantee;
Director means a director of the Company;
Docomo shall mean NTT DoCoMo, Inc., a company incorporated under the laws of Japan, having its registered office at 11-1 Nagata-cho, Chiyoda-ku, Tokyo 100-6150 Japan;
Drag Along Notice shall have the meaning given to the term in Clause11.8.1;
Drag Along Right shall have the meaning given to the term in Clause 11.8.3;
Drag Along Sale shall have the meaning given to the term in Clause 11.8.1;
Drag Along Shareholders shall have the meaning given to the term in Clause 11.8.3;
Drag Notice shall have the meaning given to the term in Clause 15.2.1(a);
Drag Price shall have the meaning given to the term in Clause 15.2.1(a);
EBITDA means the profit after tax of the Company plus interest, tax, depreciation and amortization, in each case as determined and audited in accordance with the Accounting Principles;
Effective Date shall have the meaning given to the term in Clause 2.1;
Encumbrance means any mortgage, charge (fixed or floating), pledge, lien, option, hypothecation, deed of trust, power of sale in favour of a Third Party, right to acquire, right of pre-emption, right of first refusal, assignment by way of security or trust arrangement for the purpose of providing security, any security interest or other third party right of any kind (including any retention arrangement, escrow arrangement), any right, interest or claim of a Third Party, including any Governmental Authority, or any
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agreement, arrangement or obligation to create any of the foregoing, and Encumber shall be construed accordingly;
Equity Shares means the issued and outstanding equity shares of the Company having a face value of Indian Rupees Ten only (INR 10) each in the Share Capital or any securities convertible into or exercisable for Shares or other equity interests of the Company;
Excluded Securities shall mean any Equity Shares or other Securities issued in connection with: (a) a grant to any existing or prospective consultants, employees, officers or directors pursuant to any stock option, employee stock purchase or similar equity-based plans or other compensation agreement; (b) the exercise or conversion of options to purchase Equity Shares or other Securities issued to any existing or prospective consultants, employees, officers or directors pursuant to any stock option, employee stock purchase or similar equity-based plans or any other compensation agreement; (c) any acquisition by the Company of the stock, assets, properties or business of any Person, subject to compliance with Clause 6 hereof; or (d) a stock split, stock dividend or any similar recapitalization; (e) the Combination; (f) a Clawback Subscription; or (g) a Restructuring;
Execution Date shall have the meaning assigned to it in the Preamble;
Exempted Transaction shall mean any of the following:
(a) | conversion of the Company into a private limited company; |
(b) | change in the registered office of the Company (including to another State) or changing the name of the Company; |
(c) | issuance of additional convertible securities by the Company for purposes of redemption of the IIF Preference Shares as provided under Clause 8 of this Agreement); |
(d) | a Clawback Subscription; |
(e) | any transactions contemplated by the Annual Business Plan or the Default Annual Business Plan; |
(f) | any increase in share capital for meeting the funding requirements of the Company as contemplated in the then applicable Annual Business Plan or Default Annual Business Plan, an Allowed Transaction or any other transactions specifically permitted under this Agreement, provided that any additional issuance of shares pursuant to this sub-clause (f) shall be made (I) in accordance with the provisions of Clause 10 of this Agreement and (II) only if the Company has already availed of debt at least to the extent of the Permitted Debt Ratio; |
(g) | Combination or any other transactions contemplated by the Implementation Agreement; |
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(h) | Restructuring; or |
(i) | Allowed Transactions; |
Existing Inter-se Agreement shall mean the inter-se agreement, dated 29 July 2009, between certain Existing Shareholders with respect to the inter-se rights of such Shareholders;
Existing Shareholders shall mean the Shareholders of the Company holding Shares in the Company prior to Completion;
Existing Shareholders Agreement shall mean the Shareholders Agreement, dated August 18, 2009, executed, inter alia, between and amongst certain Existing Shareholders and the Company;
Extended Period shall have the meaning given to the term in Clause 10.3;
Fair Market Value shall mean the fair market value of the Shares as determined in accordance with Schedule 6.
Financial Year means the financial year commencing on April 1 st of a calendar year and ending on March 31 st in the immediately succeeding calendar year, a period in respect of which the Company prepares its audited Accounts;
Financial Year 2017 means the Financial Year ending March 31, 2017;
First Adjourned Meeting shall have the meaning given to the term in Clause 4.5.1;
First Call Period shall mean a period of ninety (90) days commencing from the expiry of the Second Put Period;
First Put Period shall mean a period of ninety (90) days commencing from April 1, 2018;
Fully Diluted Basis shall mean, with reference to any amount or percentage of the share capital of the Company, such amount or percentage calculated as if all of the securities convertible into or exercisable or exchangeable for, or which carry a right to subscribe to or purchase or which represent or bestow any beneficial ownership or interest in, the Equity Shares of the Company, then issued and outstanding, had been exercised in full (whether or not such securities, stock options or other obligations are at such time exercisable or convertible). It is clarified that any non-convertible preference shares held under the Investment Agreement shall not be considered for the purposes of determining the shareholding of the Company on a Fully Diluted Basis;
General Meeting means a meeting of the Shareholders;
Government Entity shall mean: (a) a national government, political subdivision thereof, or local jurisdiction therein; (b) an instrumentality, board, commission, court, or
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agency, whether civilian or military, of any of the above, however constituted; or (c) a government-owned/government-controlled association, organization, business or enterprise;
Government Official shall mean: (a) an employee, officer or representative of, or any person otherwise acting in an official capacity for or on behalf of a Government Entity; (b) a legislative, administrative, or judicial official, regardless of whether elected or appointed; (c) an individual who holds any other official, ceremonial, or other appointed or inherited position with a government or any of its agencies; or (d) an officer or employee of a supra-national organization (e.g., World Bank, United Nations, International Monetary Fund, OECD);
Governmental Authority means any governmental, administrative, regulatory or statutory authority, government department, tribunal, branch, agency or any non-governmental regulatory or administrative authority or court or other entity authorized to make laws, rules or regulations or pass directions having, or purporting to have, jurisdiction, or any State or other subdivision thereof, or any municipality, district or other subdivision thereof, having jurisdiction pursuant to applicable laws, including but not limited to, the Government of the Territory, recognised stock exchanges, the SEBI and the Foreign Investment Promotion Board;
IBS (In building Solutions) means the In-building implementation of radio network through combination of distributed and spatially separated antennae systems or small cells connected through RF cables, CAT5 / CAT6 cables, copper cables or optical fiber cables or any of the cabling systems to enhance the wireless coverage/capacity & quality of licensed spectrum or unlicensed spectrum;
IDFCPE II shall mean IDFC Private Equity Fund II, a unit scheme of the IDFC Infrastructure Fund 2 (being a trust created under the Indian Trusts Act, 1881 and registered as a venture capital fund with the Securities Exchange Board of India under the Securities and Exchange Board of India (Venture Capital Funds) Regulations, 1996) and whose office is at 201, Naman Chambers, C-32, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India of which IDFC Trustee Company Limited, whose registered office is at 201, Naman Chambers, C-32, G-Block, Bandra Kurla Complex, Bandra East, Mumbai 400051, India, is a trustee;
IDFCPE III shall have the meaning given to the term in the Preamble;
IIF Preference Shares shall mean any convertible preference shares held under the Investment Agreement dated March 23, 2010, amongst India Infrastructure Fund, TTSL, Quippo Telecom Infrastructure Limited and the Company (as amended);
Implementation Agreement shall mean the implementation agreement to be executed by and amongst American Tower International, Inc., ATC Asia Pacific Pte. Ltd., Transcend Infrastructure Holdings Pte. Ltd., Transcend Infrastructure Private Limited, ATC India Infrastructure Private Limited, ATC Telecom Tower Corporation Private Limited, ATC Asia Holding Company, LLC, American Tower Mauritius, ATC India
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Tower Corporation Private Limited, ATC Tower Company of India Private Limited, McCoy Developers Private Limited, TTSL, TSL, MSIIPL, SMIT and IDFCPE III which agreement shall incorporate the principles and guidelines set out in the Combination MOU and set out in detail the manner, terms and conditions (including the swap ratio) on which the Combination shall be undertaken and given effect;
Indebtedness shall mean, as to any Person, (a) all obligations of such Person for borrowed money (including reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers acceptances, whether or not matured), (b) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and accrued/due commercial or trade liabilities arising in the ordinary course of business and any other current liabilities, (d) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (e) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (f) all obligations of such Person under capital leases as reflected in the Audited Financial Statements, but subject in any event to the Accounting Principles, (g) all indebtedness secured by any lien on any property or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall have been assumed by such Person or is non-recourse to the credit of such Person, and (h) all guarantees by such Person of the Indebtedness of any other Person; provided , however , that the term Indebtedness shall not include any obligation under Land Leases;
Independent Director shall have the meaning given to it under Section 149(6) of the Companies Act, 2013;
Independent Valuer means an internationally recognized investment bank from amongst Evercore, Lazard, Rothschild, Credit Suisse, Citibank, Goldman Sachs, Morgan Stanley, JP Morgan, Bank of America Merrill Lynch, Barclays or Deutsche Bank, and will include their respective Affiliates;
Indian Audit Firms shall mean any of the firms set out in Schedule 4;
Intimation shall have the meaning given to the term in Clause 10.2.1(b);
Investment Agreement shall mean the Investment Agreement dated March 23, 2010, amongst India Infrastructure Fund, TTSL, Quippo Telecom Infrastructure Limited and the Company (as amended);
Investor shall have the meaning given to the term in the Preamble subject to Clause 2.3;
Investor Option Price shall have the meaning given to the term in Clause 11.5.1;
Investor ROFO Offer Notice shall have the meaning given to the term in Clause 11.5.1;
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Investor ROFO Period shall have the meaning given to the term in Clause 11.5.1;
Issuance Notice shall have the meaning given to the term in Clause 10.1.3;
Issuance Period shall have the meaning given to the term in Clause 10.3;
Issuance Price shall have the meaning given to the term in Clause 10.1.3;
Issuance Shares shall have the meaning given to the term in Clause 10.1.3;
Law shall include all statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any Governmental Authority, statutory authority, tribunal, board, court or Recognized Stock Exchange;
Level I Governance Participation means Shareholding from nine percent (9%) up to, but less than, twenty-six percent (26%) of the Share Capital; provided , however , that, in the case of MSIIPL and SMIT, jointly, the provisions of Clause 6.1 shall cease to apply to MSIIPL and SMIT only if either takes direct action through a completed sale of their Shareholding to another Shareholder or to a Third Party that directly results in dilution below a nine percent (9%) Shareholding of the Share Capital;
Level II Governance Participation means Shareholding from twenty-six percent (26%) up to, but less than, fifty percent (50%) of the Share Capital;
Macquarie Put Period shall mean a period commencing on April 1, 2020 and ending on March 31, 2021;
Managing Director shall have the meaning given to the term in Clause 4.8.1;
Material ATC Breach shall mean a breach by the Investor of the following obligations under the Agreement: (i) Clauses 11.1.1 and 11.1.3 ( Lock-in ); (ii) Clause 12 ( Put Option ); and (iii) Clause 17 (Non-Compete and Non Solicitation) ;
Minority Option Price shall have the meaning given to the term in Clause 11.3.1;
Minority Purchasing Shareholder shall have the meaning given to the term in Clause 11.3.1;
Minority ROFO Offer Notice shall have the meaning given to the term in Clause 11.3.1;
Minority ROFO Period shall have the meaning given to the term in Clause 11.3.1;
MIRA shall mean Macquarie Infrastructure and Real Assets, an operating division of Macquarie Group Limited and any funds or investment vehicles managed or Controlled by the fund manager and /or the general partners of Macquarie Infrastructure and Real Assets including, MSIIPL and SMIT, but in any event, shall not include any portfolio or
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investee company in which any of the aforesaid entities may have invested but are not Controlled by the aforesaid entities;
MSIIPL shall have the meaning given to it in the Preamble;
Negotiation Notice shall have the meaning given to the term in Clause 15.2.2;
Nominating Party shall have the meaning given to the term in Clause 4.2.3;
Nomination Committee shall have the meaning given to the term in Clause 4.7.1;
Operator shall mean each carrier or operator with whom the Company has entered into a master sharing agreement, service order and/or binding letter of intent or term sheet;
Option shall mean the Put Option (including a CoC Put Option) or the Call Option, as the case may be;
Option Seller shall mean a Put Option Seller or a Call Option Seller, as the case may be;
Original Meeting shall have the meaning given to the term in Clause 4.5.1;
Other Shareholder Agreements shall mean the Existing Shareholders Agreement, the Existing Inter-Se Agreement and any and all other similar agreements among the Shareholders (other than this Agreement and the Implementation Agreement);
Party(ies) shall have the meaning given to the term in the Preamble;
Pending Arbitration shall have the meaning set forth in Clause 24.7;
Per Share Fair Market Value shall mean, with respect to any applicable Shares, the Fair Market Value of such Shares on a per Share basis;
Permitted Debt Ratio means net debt to EBITDA ratio of 3.5:1 calculated on a consolidated basis, provided that prior to the completion of the Combination, for purposes of this Agreement, the Permitted Debt Ratio shall be calculated on a pro forma consolidated basis for the Company and the ATC India Entities;
Person means any natural person, limited or unlimited liability company, body corporate, corporation, partnership (whether limited or unlimited), proprietorship, trust, union, association, whether incorporated or not, government, regulatory authority, or any other relevant authority or any agency or political subdivision thereof (as may be contextually applicable) or any other entity that may be treated as a person under applicable Law;
Pre-emptive Right shall have the meaning given to the term in Clause 10.1.2;
Pre-emptive Right Holder shall have the meaning given to the term in Clause 10.1.2;
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Pro-rata Shares shall have the meaning given to the term in Clause 11.7.3;
Proposed Issuance shall have the meaning given to the term in Clause 10.1.2;
Put Option shall have the meaning given to the term in Clauses 12.1, 12.2 and 12.3;
Put Option Completion Date shall have the meaning given to the term in Clause 12.4;
Put Option Consideration shall mean, with respect to each Party, the number of Put Option Shares being sold by it multiplied by the Put Option Price;
Put Option Exercise Notice shall have the meaning given to the term in Clause 12.1;
Put Option Price shall mean the price per Equity Share that is the higher of:
(a) | the applicable Per Share Fair Market Value; |
(b) | the per share price paid by the Investor to the selling shareholders under the Share Purchase Agreement, being Rs. 216 (Rupees two hundred and sixteen) per Share, as adjusted for stock splits, bonus issues, consolidation or other similar capital restructuring which occurs after Completion; and |
(c) | the minimum price prescribed under the applicable Law, if any; |
provided that in the event that a Put Option is exercised with respect to a Third Party transferee that acquires Shares from TTSL, TSL or IDFCPE III (as applicable), the Put Option Price shall mean the price per Equity Share that is applicable Per Share Fair Market Value;
Put Option Seller shall have the meaning given to the term in Clause 12.4;
Put Option Shares shall have the meaning given to the term in Clause 12.4;
Put Period shall mean the First Put Period or the Second Put Period (as applicable);
Qualified IPO means an initial public offering of Equity Shares, either by way of an offer for sale or fresh issuance or a combination of both, which results in the listing and commencement of trading of the Equity Shares on a Recognised Stock Exchange, or any other direct or indirect listing of any of the Securities of the Company (including pursuant to any investment trusts), at a valuation not less than a per Share price equivalent to the Put Option Price;
Receiving Party has the meaning given to the term in Clause 20.1;
Recognised Stock Exchange means:
(a) | Bombay Stock Exchange; or |
(b) | National Stock Exchange of India; |
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Rejection Notice has the meaning given to the term in Clause 11.3.2;
Related Parties shall have the meaning assigned to it in Section 2(76) of the Companies Act, 2013;
Related Party Transaction shall mean all transactions with Related Parties, including but not limited to investments in, or loans to, Related Parties;
Restructuring shall mean the Combination or any internal reorganisations or amalgamations, as required, including but not limited to the issuance of Indebtedness or equity (including preferred stock) prior to and following the Combination; provided , however , that (i) such Restructuring does not adversely affect the Shareholding or rights of any Shareholder; (ii) and such Restructuring does not result in American Tower Corporation losing direct or indirect Control of the Investor or American Tower International Inc.; and (iii) such Restructuring does not result in a Competitor being a shareholder of the Investor or American Tower International Inc.;
ROFO Notice shall have the meaning given to the term in Clause 11.3.1;
Sale Shares shall mean the Shares agreed to be transferred from certain Shareholders of the Company to the Investor in accordance with the Share Purchase Agreement;
SEBI shall mean the Securities Exchange Board of India or its successor;
SEBI Regulations shall mean the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009 and any amendments thereto;
Second Adjourned Meeting shall have the meaning given to the term in Clause 4.5.1;
Second Call Period shall mean a period of ninety (90) days commencing from April 1, 2020;
Second Minority ROFO Offer Notice shall have the meaning given to the term in Clause 11.3.2;
Second Put Period shall mean a period of ninety (90) days, commencing from April 1, 2019;
Securities means any subscriptions, options, debentures, preference shares, instruments, bonds, conversion rights, warrants, or similar agreements, securities, letter agreements, including without limitation, those conferring the right to subscribe to the equity/preference Shares of the Company or commitments/arrangements of any kind obligating the Company to issue, allot, grant, deliver or sell, or cause to be issued, allotted, granted, delivered or sold (a) any Equity Shares or any derivative securities of the Company; (b) any securities convertible into or exchangeable for any Equity Shares in the equity Share Capital; or (c) any instrument that creates any rights whatsoever to participate in the equity, economic interest or income of the Company;
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Selling Tata Shareholder shall have the meaning given to the term in Clause 11.4.1;
Share Capital shall mean the issued and outstanding share capital of the Company on a Fully Diluted Basis;
Share Purchase Agreement has the meaning given to the term in Recital B;
Shareholder means from time to time a Person in whose name shares are registered in the Companys register of members and/ or register of preference shares, and Shareholders means all of them;
Shareholder Meeting Quorum shall have the meaning given to the term in Clause 5.4;
Shareholders Agreement Put Obligation Performance Guarantees shall mean:
(a) | the sponsor support agreement executed by American Tower International, Inc. on the Execution Date, in favour of TTSL, TSL, MSIIPL, SMIT and IDFCPE III, and to be effective as of the Execution Date, governed by the Jurisdiction of New York to ensure performance of the obligations of the Investors under Clauses 11.10, 12, 13, 14, 15 ; and |
(b) | the irrevocable and unconditional guarantee to be issued by American Tower Corporation on the Execution Date, in favour of TTSL, TSL, MSIIPL, SMIT and IDFCPE III, and to be effective as of the Execution Date, guaranteeing discharge by ATII of its obligations under the sponsor support agreement entered into by ATII as per (a) above; |
Shareholding means the percentage of shareholding in the Share Capital;
Shares means any shares in the Share Capital;
SMIT shall have the meaning given to it in the Preamble;
Subsequent Financial Year means any Financial Year after Financial Year 2017;
Tag Along Acceptance Notice shall have the meaning given to the term in Clause 11.7.4;
Tag Along Offer Notice shall have the meaning given to the term in Clause 11.7.1;
Tag Along Right shall have the meaning given to the term in Clause 11.7.3;
Tag Along Shareholders shall have the meaning given to the term in Clause 11.7.3;
Tag Along Shares shall have the meaning given to the term in Clause 11.7.4;
Tata Option Price shall have the meaning given to it in Clause 11.4.1;
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Tata ROFO Offer Notice shall have the meaning given to it in Clause 11.4.1;
Tata ROFO Period shall have the meaning given to it in Clause 11.4.1;
Tatas shall mean TTSL, TSL and any of their respective Affiliates (including TOF) who hold any Shares in the Company;
Taxes or Taxation includes all forms of taxation (direct or indirect), charges, duties, imposts, levies or other assessments, fees, rates and withholding obligations (with respect to compensation or otherwise), imposed by any Governmental Authority under applicable Law on income or other assessment of income, profits (including dividend), service, sales, wealth, value added tax, excise, export duty, import duty, entry tax, professional tax, service tax, dividend distribution tax, capital gains, stamp duty and property tax, social security, payroll tax, whenever created or imposed and whether under the Laws of India or elsewhere, and all penalties, fines and interest payable and any additions in respect of such amounts;
Territory means the Republic of India;
Third Party means any Person other than the Shareholders (including such Shareholders Affiliates) and the Company;
Third Party Consultants shall have the meaning given to the term in Clause 9.2;
Third Party Subscriber shall have the meaning given to the term in Clause 10.5;
TOF shall mean the Tata Opportunities Fund LP (a limited partnership registered in Singapore) or any other successor limited partnerships, managed by Tata Capital Advisors Pte. Limited and shall include:
(i) | its general partner and limited partners |
(ii) | any Persons, funds, vehicles or companies directly or indirectly, managed or advised by Tata Capital Advisors Pte. Limited, in its capacity as an investment manager |
(iii) | Tata Capital Limited and any Persons or entities, directly or indirectly, owned or Controlled or managed by or under the joint Control of Tata Capital Limited; |
Transfer means and includes any direct or indirect sale, assignment, lease, transfer, gift, or other disposition or alienation of any property, asset, right or privilege or any interest therein or thereto; provided, however, the sale or assignment of any equity interest in the Investor which does not result in a change in Control of the Investor shall not constitute a Transfer for purposes of this Agreement;
Trigger Events shall have the meaning given to the term in Clause 10.5;
TSL shall have the meaning given to the term in the Preamble;
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TTML means Tata Teleservices (Maharashtra) Limited; and
TTSL shall have the meaning given to the term in the Preamble.
1.2 | Interpretation |
1.2.1 | In this Agreement: |
(a) | References to the singular shall include references to the plural and vice-versa; |
(b) | References to Recitals, Clauses, Sub-Clauses and Schedules are to recitals, clauses, sub-clauses of, and schedules to, this Agreement; |
(c) | Any reference herein to a statutory provision shall include such provision, as is in force for the time being and as from time to time, amended or re-enacted; |
(d) | The words this Clause unless followed by a specific clause and/or sub-clause number, shall mean the entire clause and not merely the sub-clause or portion of the clause where such words appear; |
(e) | The words hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; |
(f) | The words include, including and among other things shall, in all cases, be deemed to be followed by without limitation or but not limited to whether or not they are followed by such phrases or words of like import; |
(g) | Unless otherwise stated, time will be the essence of contract for the purpose of any Partys obligations under this Agreement; |
(h) | References in this Agreement to any document or agreement (including this Agreement) shall be deemed to include references to such document or agreement as amended, varied, restated, supplemented or replaced from time to time in accordance with the terms thereof and also include references to any side letters executed in connection therewith, except as otherwise provided in this Agreement; |
(i) | Unless the contrary is expressly stated, no Clause in this Agreement limits the extent or application of another Clause; |
(j) | Headings to Clauses, parts and paragraphs of Schedules and Schedules are for convenience only and do not affect the interpretation of this Agreement; |
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(k) | Any reference to any Party or Shareholder being obliged to procure or cause or ensure any action shall be construed as a reference to that Party or Shareholder being obliged to exercise all rights and powers available to it so as to procure or cause or ensure the relevant action; and |
(l) | The determination of any period of days for the occurrence of an event or the performance of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done. |
2. | EFFECTIVE DATE |
2.1 | This Agreement shall become effective and binding on the Parties on the date of Completion (the Effective Date ), other than Clause 3 (Representations and Warranties and Covenants), Clause 19, (Costs and Expenses), Clause 20 (Confidentiality), Clause 22 (Miscellaneous), Clause 23 (Governing Law and Arbitration) and Clause 24 (Dispute Resolution) which shall come into effect on the Execution Date. |
2.2 | As of the Effective Date, upon Completion, the Shareholding of the Parties in the Company shall be in the proportion mentioned in Schedule 1B. |
2.3 | In the event that the Investor uses its right to designate Person(s) to purchase any of the Sale Shares in accordance with Clause 2.1 of the Share Purchase Agreement, references to the Investor shall include such Person(s). |
2.4 | The Parties agree that, the Investor shall have the right to convert the Company to a private limited company under the provisions of the Companies Act, provided that such conversion shall be undertaken in a manner that will not adversely affect or delay the Combination. |
3. | REPRESENTATIONS AND WARRANTIES AND COVENANTS |
3.1 | Each Party represents and warrants to the other Parties as follows: |
3.1.1 | It is duly organized and validly existing under the laws of jurisdiction in which it is incorporated and has the necessary corporate power and authority to carry on its business. |
3.1.2 | It has all necessary power and authority to execute and deliver this Agreement and this Agreement shall constitute its valid and binding obligations. The execution and delivery of this Agreement has been duly and validly authorised and no other corporate action or proceeding on its part is necessary to authorise execution of this Agreement. |
3.1.3 | The execution and delivery of this Agreement does not and will not: |
(a) | contravene any provisions of its charter documents or its memorandum of association or articles of association; |
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(b) | excluding the Other Shareholder Agreements (each of which shall stand terminated on the Effective Date), to the extent applicable to such Party, result in a default or give rise to any right of termination, cancellation or acceleration under any of the terms, conditions or provisions of any material indenture, mortgage, note, lien, license, government registration, contract, lease, agreement or other instrument or obligation to which it is a party or by which it is bound; or |
(c) | violate any order, writ, judgement, injunction, decree, statute, ordinance, rule or regulation applicable to it. |
3.1.4 | No order has been made, petition presented, resolution passed or meeting convened for its liquidation, winding up and/or for an administration order against it and there are no cases or proceedings under any applicable insolvency, reorganisation, or similar applicable Laws and no events have occurred which, under applicable Laws, would justify and result in any such cases or proceedings, other than as disclosed by the Company in the disclosure schedule delivered by the Company pursuant to the Share Purchase Agreement. |
3.1.5 | Except for this Agreement, the Implementation Agreement and the Other Shareholder Agreements (each of which shall stand terminated on the Effective Date), to the extent applicable to such Party, such Party has not entered into or agreed to be bound by any other agreements or arrangements of any kind with any other Party with respect to the Equity Shares, including agreements or arrangements with respect to the acquisition, disposition or other transfer of the Equity Shares or any interest therein or the voting of the Equity Shares, election of Directors or otherwise relating to the management and/or governance of the Company (whether or not such agreements and arrangements are with the Company or any other Shareholder) and or any trust, proxy, power of attorney, pooling arrangement or any other contract, arrangement or device with the purpose or effect of divesting such Shareholder of beneficial ownership of the Equity Shares. |
3.2 | Covenants |
3.2.1 | Each Shareholder shall not knowingly or intentionally take any action with respect to the Company that would constitute a violation of Anti Bribery Laws and no Shareholder shall transfer any Shares if it has knowledge that the prospective purchaser or transferee is listed on published sanctions lists maintained by the Office of Foreign Assets Control of the United States Treasury Department, and/or any Shareholder may block a proposed transfer if the prospective purchaser or transferee is listed on published sanctions lists maintained by the Office of Foreign Assets Control of the United States Treasury Department. |
3.2.2 | On and from the Effective Date, Parties agree, subject to the terms of this Agreement and the Articles of the Company, that: |
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(a) | The Investor shall be in, and shall be responsible for, the management and operational control of Company and shall at all times, including, without limitation for the purposes of any public offering and for the purposes of filings required under Law, including for the purpose of Clause 15 hereto, be deemed to be the promoter of the Company; and |
(b) | The Continuing Shareholders shall not be in, nor responsible for, the management and operational control of Company and shall not be classifed as promoters of the Company for any purpose. |
4. | MANAGEMENT OF THE COMPANY |
4.1 | Board of Directors |
Subject to the terms of this Agreement, the affairs of the Company shall be managed exclusively by and under the overall direction and control of its Board, which shall have powers to do all such lawful acts and take all such actions as are permitted under applicable Law and the Charter Documents of the Company, at all times observing the Affirmative Vote Matters as set out in Schedule 2; provided , however , that those matters that are required to be approved by the Shareholders, whether under applicable Law, this Agreement or the Charter Documents, shall be referred to the Shareholders for their approval in accordance with applicable Law, this Agreement or the Charter Documents, as the case may be.
4.2 | Composition of the Board |
4.2.1 | Unless otherwise agreed in writing among the Parties, or as otherwise provided under this Agreement, on and from the Effective Date, the Board shall consist of twelve (12) Directors appointed in accordance with the terms set out herein: |
(a) | the Investor (together with its Affiliates) shall: |
(i) | so long as it collectively holds at least fifty percent (50%) of the Share Capital, have the right to nominate and designate for election six (6) Directors on the Board; |
(ii) | for so long as it collectively holds twenty percent (20%) or more of the Share Capital, but less than fifty percent (50%) of the Share Capital, have the right to jointly nominate two (2) Directors on the Board; and |
(iii) | for so long as it collectively holds at least nine percent (9%) of the Share Capital, have the right to jointly nominate one (1) Director on the Board. |
(b) | the Tatas shall: |
(i) |
for so long as they collectively hold twenty percent (20%) or more |
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of the Share Capital, but less than fifty percent (50%) of the Share Capital, have the right to jointly nominate two (2) Directors on the Board; and |
(ii) | for so long as Tatas collectively hold at least nine percent (9%) of the Share Capital, have the right to jointly nominate one (1) Director on the Board. |
(c) | MSIIPL and SMIT shall have the right to jointly nominate one (1) Director on the Board so long as they collectively hold their actual Shareholding as on the Effective Date (such shareholding, the MSIIPL and SMIT Effective Date Shareholding ). |
Notwithstanding anything contained in Clause 4.2.1(c) above, MSIIPL and SMITs right to nominate one (1) Director under said clause shall be subject to Clause 27.
(d) | at least three (3) Independent Directors (or such other number as required under applicable Law) shall be appointed by the Board, subject to the consent of the Investor, to satisfy any requirements for appointment of a minimum number of, or qualifications of, Directors under applicable Law. |
4.2.2 | Unless otherwise agreed in writing among the Parties, on and from the conversion of the Company into a private limited company, the Board shall consist of seven (7) Directors appointed in accordance with the terms set out herein: |
(a) | the Investor (together with its Affiliates) shall: |
(i) | so long as it collectively holds at least fifty percent (50%) of the Share Capital, have the right to nominate and designate for election four (4) Directors on the Board; |
(ii) | for so long as it collectively holds twenty percent (20%) or more of the Share Capital, but less than fifty percent (50%) of the Share Capital, have the right to jointly nominate two (2) Directors on the Board; and |
(iii) | for so long as it collectively holds at least nine percent (9%) of the Share Capital, have the right to jointly nominate one (1) Director on the Board. |
(b) | the Tatas shall: |
(i) | for so long as they collectively hold twenty percent (20%) or more of the Share Capital, but less than fifty percent (50%) of the Share Capital, have the right to jointly nominate two (2) Directors on the Board; and |
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(ii) | for so long as Tatas collectively hold at least nine percent (9%) of the Share Capital, the Tatas have the right to jointly nominate one (1) Director on the Board. |
(c) | MSIIPL and SMIT shall have the right to jointly nominate one (1) Director on the Board so long as they collectively hold MSIIPL and SMIT Effective Date Shareholding. |
Notwithstanding anything contained in Clause 4.2.2(c) above, MSIIPLs and SMITs joint right to nominate one (1) Director under said clause shall be subject to Clause 27.
4.2.3 | The Party (the Nominating Party ) entitled to nominate a Director shall be entitled to remove from office any Director so nominated by it and to appoint another nominee in the place of the Director so removed. The Nominating Party shall be entitled, from time to time, to nominate an individual to be appointed as an alternate Director to the Director nominated by it and the Board shall appoint such Person as an alternate Director for such Director. |
4.2.4 | The Parties undertake to exercise all their rights (including voting rights) and powers and take all requisite actions to ensure that: (a) the Person nominated by a Nominating Party for appointment as a Director is forthwith appointed as a Director; (b) in case of a Person who is a Director other than an alternate Director, unless such Party changes or withdraws such nomination, such Person is also elected as a Director at the next General Meeting; and (c) a Director that the Nominating Party seeks to remove in accordance with Clause 4.2.3 is promptly removed. |
4.2.5 | Notwithstanding anything contained in this Clause 4.2, in the event TTSL and TSL, collectively, cease to have the right to nominate a Director on the Board, TTSL shall have the right to nominate 1 (one) observer (without a right to participate or vote at the meetings) for so long as TTSL remains the Companys largest customer by gross revenue on an annual basis, is a Shareholder and there has been no change in Control with respect to TTSLs ownership. Such observer shall be subject to confidentiality obligations in the same manner as are applicable to Directors. |
4.3 | Chairman |
The Investor shall select from amongst the Directors it has designated, one (1) Director to be the chairman of the Board. The chairman of the Board shall have a second or casting vote in the event of an equality of votes at Board meetings of the Company.
4.4 | Meetings of the Board |
4.4.1 |
The Board shall convene a meeting at least once in every calendar quarter at a location determined by the Board and no more than one hundred and twenty (120) days shall elapse between two (2) consecutive Board meetings. The Board may |
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hold a meeting of the Board via teleconference, videoconference and other audio visual means, if permitted under applicable Law. The Board may meet more often from time to time as it deems necessary. Meetings of the Board may be called, with written notice to the Directors, by the chairman of the Board or a majority of the Board. |
4.4.2 | Subject to the provisions of applicable Law, at least fourteen (14) Business Days notice of each Board meeting shall be given to every Director at his or her usual address, provided always that a meeting may be convened at a shorter notice period only with the consent of all Directors in writing. |
4.4.3 | The notice of each Board meeting shall include an agenda setting out the business proposed to be transacted at the meeting and no matter other than the business mentioned in the agenda shall be taken up for discussion or voting at such meeting unless agreed by all Directors (whether present or not at such meeting). |
4.4.4 | In the event the Director nominated by MSIIPL and SMIT is unable to attend a meeting of the Board, MSIIPL and SMIT shall jointly be entitled to send an observer to such meeting, who shall not be entitled to participate or vote at the meeting. Such observer shall be subject to confidentiality obligations in the same manner as are applicable to Directors. |
4.5 | Quorum |
4.5.1 | The quorum for all meetings of the Board shall be at least four (4) Directors. Without prejudice to the foregoing, a valid quorum for every meeting of the Board shall be deemed to be constituted only if at least (a) three (3) Directors nominated by the Investor and (b) one (1) Director nominated jointly by TTSL and TSL (such valid quorum requirements under the preceding clauses (a) and (b), the Board Meeting Quorum ) are present at the beginning and throughout the meeting of the Board (the Original Meeting ). If the Board Meeting Quorum is not present within thirty (30) minutes from the time when the Original Meeting should have begun, or if during the Original Meeting there is no longer a quorum, the Original Meeting shall automatically be adjourned to the same day in the following week (the First Adjourned Meeting ). If the Board Meeting Quorum is not present within thirty (30) minutes from the time when the First Adjourned Meeting should have begun, or if during the First Adjourned Meeting there is no longer a quorum, the First Adjourned Meeting shall automatically be further adjourned to the same day in the following week (the Second Adjourned Meeting , together with the First Adjourned Meeting, each an Adjourned Meeting ). If the Board Meeting Quorum is not present at the Second Adjourned Meeting, the Directors then present shall, subject to applicable Law, constitute the quorum for the Second Adjourned Meeting and shall, subject to the provisions of Clause 6, be entitled to vote and pass resolutions in relation to all matters (excluding Affirmative Vote Matters in accordance with Clause 4.5.3). Each Party may, at its discretion, agree in writing to waive its respective rights under this Clause 4.5.1 on a case by case basis. |
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4.5.2 | Written notice of each Adjourned Meeting shall be given to all Directors at least five (5) Business Days before the Adjourned Meeting. Directors shall be regarded as present for the purposes of a quorum if represented by an alternate Director. Attendance by a Director in-person or via teleconference, videoconference or other audio visual means, if permitted under applicable Law, shall be regarded as present for purposes of the quorum . |
4.5.3 | Notwithstanding anything else mentioned herein, (a) no resolution shall be passed in respect of any Affirmative Vote Matter in a Board meeting unless the quorum is present as per Clause 4.5.1 above and the Director if nominated by the Shareholder whose Consent is required for the Affirmative Vote Matter is present in such Board meeting; provided , however , that such resolution can be passed if the decision of any nominee Director (or the nominating Shareholder of such Director) whose presence is required to constitute the quorum as per this Clause 4.5.3 has already been communicated in writing to the Company; and (b) the Parties hereby further agree that if (x) at least one (1) Director nominated by the Shareholder whose Consent is required for an Affirmative Vote Matter is not present, even at the Second Adjourned Meeting, and (y) the decision (either approval or disapproval of the concerned Affirmative Vote Matter) of such Director (or the nominating Shareholder of such Director) has also not been communicated in writing to the Company prior to the Second Adjourned Meeting, then (z) such Director shall not be deemed to have approved the relevant Affirmative Vote Matter. |
4.5.4 | Minutes of each meeting of the Board and of any Board committee shall be taken in English and kept by the Company in accordance with applicable Law. |
4.6 | Passing of Resolutions and Voting |
4.6.1 | Each Director shall have the right to cast one (1) vote. Except for decisions relating to Affirmative Vote Matters under this Agreement (which may additionally require a Consent from one or more Shareholders under Clause 6) or which expressly require a higher majority under applicable Law, decisions of the Board shall be made on the basis of a simple majority vote cast by the Directors entitled to vote at the relevant meeting representing a majority of the number of Directors present and voting on any resolution put to vote at any Board meeting. In the event the provisions of Clause 6 hereof are unenforceable under Law at the meetings of the Board, all decisions in relation to any of the matters specified in Clause 6 shall be taken by the Company only at a General Meeting and shall be required to be passed by way of special resolution or such other higher threshold as may be required to give effect to the provisions of Clause 6. |
4.6.2 | A resolution by circulation shall be as valid and effectual as a resolution duly passed at a meeting of the Directors called and held, provided that it has been circulated in draft form, together with the relevant papers, if any, to all of the Directors and such draft form of the resolution has been approved by all Directors. |
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4.7 | Committees of the Board |
4.7.1 | Unless otherwise agreed between the parties, the committees of the Board shall be the Audit Committee (the Audit Committee ), the Nomination and Remuneration Committee (the Nomination Committee ) and the Corporate Social Responsibility Committee (the CSR Committee ). The Parties agree and acknowledge the following: |
(a) | The Audit Committee shall be comprised of five (5) Directors, of which three (3) Directors shall be Independent Directors, one (1) Director shall be nominated by the Investor, and one (1) Director shall be nominated jointly by TTSL and TSL. |
(b) | The Nomination Committee shall be comprised of five (5) Directors, of which three (3) Directors shall be Independent Directors, one (1) Director shall be nominated by the Investor, and one (1) Director shall be nominated jointly by TTSL and TSL. |
(c) | The CSR Committee shall be comprised of six (6) Directors, of which three (3) Directors shall be Independent Directors, two (2) Directors shall be nominated by the Investor, and one (1) Director shall be nominated jointly by MSIIPL and SMIT. |
(d) | For any and all other Board committees, unless agreed between the Parties at least three (3) Directors nominated by the Investor, one (1) Director nominated jointly by TTSL and TSL, and one (1) Director nominated jointly by MSIIPL and SMIT shall be nominated as a member of each such Board committee. |
It is hereby clarified that on and from the conversion of the Company into a private limited company, subject to any requirements of applicable Law, the Board shall be entitled to reconstitute the Audit Committee, the Nomination Committee and the CSR Committee to remove any Independent Directors, it being understood that (a) until such time that the Investor and TTSL/TSL have the right to nominate a Director, each of such committees shall comprise at least one (1) Director to be nominated by the Investor and one (1) Director nominated jointly by TTSL and TSL, and (b) following such reconstitution, each of the committees shall comprise a majority of Directors nominated by the Investor.
Without prejudice to the foregoing, a valid quorum for every meeting of each Board committee shall be deemed to be constituted only if (1) Director nominated by the Investor and one (1) Director nominated jointly by TTSL and TSL (if applicable) are present at the beginning and throughout the meeting of the committee. Attendance by a Director in-person or via teleconference, videoconference or other audio visual means, if permitted under applicable Law, shall be regarded as present for purposes of each committee. Except for decisions relating to Affirmative Vote Matters (which may additionally require a Consent
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from one or more Directors under Clause 6), committee recommendations to the Board shall reflect the shared view of the Directors on the basis of a consensus vote of those Directors on such committee entitled to vote at the relevant meeting. Each of the Directors shall have the right to request for, and shall be provided a copy of the minutes of each of the committee meetings, and the Company shall provide such minutes to the requesting Director promptly.
4.7.2 | The Parties agree that all matters that would be referred to committees shall be determined by the Board and the Board may create ad-hoc committees as required (each of which shall be subject to the Clauses 4.7.1(d) and the final paragraph of 4.7.1). The Board shall define the scope of the actions of each committee. Notwithstanding the foregoing, any delegation of an item relating to an Affirmative Vote Matter shall itself be an Affirmative Vote Matter. Further, the minutes of each of the committee meetings shall be placed before the Board at the next Board meeting. |
4.7.3 | The provisions relating to the meetings of the Board of the Company under Clauses 4.4, 4.5 and 4.6 shall apply mutatis mutandis to any meeting of each Board committee. |
4.8 | Executive Management of the Company |
4.8.1 | It is agreed that the day to day management of the Company, subject to the overall supervision and control of the Board, shall be delegated to the managing director of the Company (the Managing Director ) and other important managerial personnel. |
4.8.2 | The Managing Director shall be designated and appointed by the Board; provided , however , that, so long as TTSL, TSL or their Affiliates is entitled to appoint one (1) Director pursuant to Clause 4.2.1(b) or Clause 4.2.2 (b) (as applicable), of the Company, then such designation and appointment shall follow consultation between the Investor and TTSL, TSL or such Affiliates (as applicable) regarding such designation and appointment. |
4.8.3 | The chief executive officer, chief operating officer, chief financial officer, chief compliance officer and company secretary shall be selected by the Nomination Committee in consultation with, and approval of, the Board. |
4.8.4 | The Parties agree that the important managerial positions of the Company as of the Effective Date shall be identified jointly, in writing, by the Investor, TTSL and TSL as set out on Schedule 5. |
4.9 | Annual Business Plan |
4.9.1 |
Unless otherwise agreed among the Parties, the Annual Business Plan of the Company for the Financial Year 2017, which shall come into effect as and from April 1, 2016, shall be the higher of revenue and expenditure figures based on (A) the Annual Business Plan for the Financial Year ending March 31, 2016 provided |
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to the Investor by the Company or (B) the actual annual operating revenue and expenditure results of the Company (and excluding extraordinary items) for the Financial Year ending March 31, 2016 (it being understood that if the Completion occurs prior to March 31, 2016, the operating revenue and expenditure statement from April 1, 2015 till the date of Completion shall be annualized), in each case, adjusted upwards by up to ten percent (10%) in respect of each key expenditure parameter (including the capital expenditure, operating expenditure and SG&A expenses) and further adjusted to account for the average inflation for the previous two (2) Financial Years, computed in accordance with the Consumer Price Index. Provided that the target operating results and cash flows in such Annual Business Plan shall have been increased by a minimum of 10% plus average inflation for the previous two (2) Financial Years, computed in accordance with the Consumer Price Index. Upon completion of the Combination the Annual Business Plan of the Company will be adjusted to include the annual business plan of the ATC India Entities. The annual business plan of the ATC India Entities shall be prepared on a basis consistent with that of the Company. For any partial year post Combination, the Annual Business Plan shall include the remaining portion of the annual business plan of the ATC India Entities and for the period already elapsed, the Annual Business Plan shall be restated to include the actual income and operating statement of the ATC India Entities for such elapsed period. |
4.9.2 | Unless otherwise agreed among the Parties in a Subsequent Financial Year, the Parties further agree that the Annual Business Plan for any Subsequent Financial Year shall, from the commencement of a Financial Year be the higher of revenue and expenditure numbers based on (A) Annual Business Plan for the previous Financial Year (which for avoidance of doubt may include an Annual Business Plan deemed to be approved under this Clause 4.9.2 for such previous Financial Year) or (B) the actual operating results and cash flows of the Company for the fourth quarter of the previous Financial Year, to be computed (excluding extraordinary items), annualized, in each case adjusted cumulatively on account of each of the following: (i) upwards for any Allowed Transaction in the previous Financial Year; (ii) upward increase of upto ten percent (10%) in respect of each key expenditure parameter (including the capital expenditure, operating expenditure and SG&A expenses); and (iii) adjustment on account of the average inflation for the previous 2 (two) Financial Years, computed in accordance with the Consumer Price Index. Provided that the target operating results and cash flows in such annual business plan shall have been increased by a minimum of 10%, plus average inflation for the previous 2 (two) Financial Years, computed in accordance with the Consumer Price Index. Such Annual Business Plan shall be adopted by the Board as the Annual Business Plan applicable for such Subsequent Financial Year. |
4.9.3 | The Business shall be conducted in accordance with the approved Annual Business Plan. |
4.9.4 |
Along with each Annual Business Plan, the Company shall provide to the |
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Shareholders a business outlook for the next three (3) Financial Years. |
5. | SHAREHOLDERS MEETINGS |
5.1 | The Board may convene a General Meeting. |
5.2 | Subject to the provisions of applicable Law, at least twenty-one (21) Business Days written notice of every General Meeting shall be given to all Shareholders at their usual address, provided always that a General Meeting may be convened by a notice shorter than twenty-one (21) Business Days, in accordance with the provisions of applicable Law; provided , however , that any notice period shorter than twenty-one (21) Business Days shall require the prior consent of TTSL, TSL, MSIIPL, SMIT and IDFCPE III, which consent shall not be unreasonably delayed, conditioned or withheld. |
5.3 | The notice of each General Meeting shall include an agenda setting out the business proposed to be transacted at the meeting, together with copies of all relevant papers connected therewith and/or proposed to be placed before or tabled at the General Meeting. |
5.4 | The quorum for a General Meeting shall be in accordance with applicable Law, provided that it shall comprise at least one (1) representative of the Investor and one (1) representative representing both TTSL and TSL (the Shareholder Meeting Quorum ). If the Shareholder Meeting Quorum is not present within thirty (30) minutes from the time when the meeting should have begun, or if during the meeting there is no longer a Shareholder Meeting Quorum, the meeting shall automatically be adjourned to the same day in the following week (an Adjourned General Meeting ) in accordance with applicable Law. If the Shareholder Meeting Quorum is not present at an Adjourned General Meeting, the representatives present (which must include the representative of the Investor) shall constitute the quorum for such Adjourned General Meeting, and, subject to applicable Law and Clause 6 below, shall be entitled to vote and pass resolutions in relation to all matters (excluding the Affirmative Vote Matters in accordance with Clause 5.5 below). Each Party may, at its discretion, agree in writing to waive its respective rights under this Clause 5.4 on a case by case basis. |
5.5 | Notwithstanding anything else mentioned herein, (a) no resolution shall be taken up for consideration in respect of any of the Affirmative Vote Matters unless the quorum of the General Meeting comprises at least one (1) representative nominated by the Shareholder without whose Consent such Affirmative Vote Matter cannot be passed, and such representative is present at the beginning and throughout the meeting; provided , however , that that such resolution can be passed if the decision of such Party has already been communicated in writing to the Company, and (b) the Parties hereby further agree that if (x) at least one (1) representative of the Shareholder whose Consent is required for an Affirmative Vote Matters is not present even at an Adjourned General Meeting, and (y) the decision (either approval or disapproval of the concerned Affirmative Vote Matter) of such Shareholder has also not been communicated in writing to the Company prior to the Adjourned General Meeting, then (z) such Shareholder shall not be deemed to have approved the relevant Affirmative Vote Matter. |
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5.6 | The chairman of the Board shall preside as chairman of all General Meetings. |
5.7 | Each Equity Share shall carry one (1) vote and subject to the provisions of Clause 6 below and applicable Law, all decisions of the Shareholders shall be made by simple majority of all outstanding Equity Shares. |
5.8 | Each Shareholder agrees to exercise its voting rights as a Shareholder to fully and effectually implement the spirit, intent and specific provisions of this Agreement, including, without limitation, to support the appointment of a Director proposed for appointment by the Shareholders. The Shareholders expressly agree and undertake at all times to exercise their voting rights, or to cause their separate representatives or proxies who may exercise such voting rights on their behalf, at any General Meeting hereunder in a manner that shall give effect to and comply with the provisions of this Agreement. |
5.9 | Each Shareholder, including the Investor, agrees that it has not and shall not enter into any voting trusts, rights of pre-emption, shareholder agreements, proxies or other agreements or understandings with respect to the voting or transfer of any of its Equity Shares except in accordance with the provisions of this Agreement. |
6. | AFFIRMATIVE VOTE MATTERS |
6.1 | For so long as any Shareholder (together with its Affiliates) holds Level I Governance Participation, no action or decision relating to any of the Affirmative Vote Matters listed in Part A of Schedule 2 shall be taken or permitted to be taken, and no resolution shall be passed, by the Board, its committees, and/or the Shareholders at a meeting or in any other manner whatsoever, without the Consent of such Shareholder or a Director nominated by such Shareholder, except as provided in Clause 6.5. |
Provided that the right of MSIIPL and SMIT under this Clause 6.1 relating to the Affirmative Vote Matters listed in items 4, 5 and 12 of Part A, shall fall away upon the expiry of the June 30, 2019.
6.2 | For so long as any Shareholder (together with its Affiliates) holds Level II Governance Participation and for so long as the Investors Shareholding is at least 50%, no action or decision relating to any of the Affirmative Vote Matters listed in Part A of Schedule 2 and Part B of Schedule 2 shall be taken or permitted to be taken, and no resolution shall be passed, by the Board, its committees, and/or the Shareholders at a meeting or in any other manner whatsoever, without the Consent of such Shareholder and/or the Investor, as the case may be, except as provided in Clause 6.5. |
6.3 | The Parties further agree and acknowledge that if the rights of any Shareholder set out in this Clause 6 are rendered unenforceable at any meeting of the Board for any reason whatsoever, then all decisions in relation to such matters at such meeting of the Board shall be taken by the Company only at a General Meeting duly convened in accordance with this Agreement, and shall be required to be passed by way of special resolution or such other higher threshold as may be required to give effect to the intent and purpose of the provisions of this Clause 6. |
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6.4 | Any resolution passed and any action taken by the Company in contravention of the provisions of this Clause 6 shall be deemed to be ultra vires the powers of the Company and shall be void ab initio . |
6.5 | Notwithstanding anything to the contrary contained in this Agreement or the Articles of Association of the Company, any action or decision by the Company required to give effect to the Exempted Transactions shall not be considered as an Affirmative Vote Matter and will accordingly not require the Consent of Shareholders as mentioned in Clause 6.1 and 6.2 above. |
7. | DEADLOCK |
7.1 | If: |
7.1.1 | the Board or any Board committee is unable to pass a resolution on an Affirmative Vote Matter that has been put to it in a duly convened meeting (including Adjourned Board Meeting, if any), because the Director nominated by the Shareholder whose Consent is needed for such Affirmative Vote Matter has not voted in favor of it or has communicated its disapproval with respect to such Affirmative Vote Matter or has not been present at such meeting; or |
7.1.2 | the Shareholders are unable to pass a resolution on an Affirmative Vote Matter, which has been put to them in a duly convened meeting (including Adjourned General Meeting, if any) because the Shareholder whose Consent is needed for such Affirmative Vote Matter has not voted in favor of it or has communicated its disapproval with respect to such Affirmative Vote Matter or has not been present at such meeting, |
(the situations in Clauses 7.1.1and 7.1.2, each, a Deadlock Matter ),
then either of the Investor or the Shareholder whose consent was needed for such Affirmative Vote Matter may refer the unresolved matter to such Partys chairman/chief executive officer or such other senior representative nominated by such Party (such nominated individuals, the Deadlock Appointees ) by sending written notice to the Deadlock Appointees along with a copy to all Parties.
7.2 | The resolution agreed by the Deadlock Appointees in the manner provided in this Clause 6.5 shall be final and binding on the Investor and the relevant Shareholder, and the Deadlock Matter shall be resolved accordingly. Until the Deadlock Matter is so resolved, the Company shall continue to operate in accordance with the terms of this Agreement and its Articles of Association. |
7.3 | If the Deadlock Appointees are not able to resolve the Deadlock Matter within thirty (30) Business Days of the referral noted in the final paragraph of Clause 7.1, then the Affirmative Vote of the Shareholder shall be deemed to have prevailed and the Deadlock Matter shall be deemed to have been resolved as such. |
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8. | IIF PREFERENCE SHARES |
8.1 | The Parties agree and confirm that on and from the date of Completion, in the event any payment is due and payable to India Infrastructure Fund ( IIF ) in accordance with the terms of the Investment Agreement (including, without limitation, any dividends, interests, premiums or any other payments) and the Company is unable to make such payment for any reason whatsoever, then, the Investor shall, at least three (3) Business Days prior to the date on which the payment is required to be made to IIF, invest amounts in the Company in such manner (other than through Equity Shares) , as may be required to ensure that the Company is able to make such payments (including paying any dividends, premiums or redemption amounts) in relation to the preference shares held by IIF in accordance with the Investment Agreement. |
8.2 | Any issuance of convertible securities by the Company to the Investor pursuant to Clause 8.1 shall be subject to the following: |
8.2.1 | If such preferences shares are convertible into Equity Shares, then such conversion right shall not be exercisable prior to March 31, 2021; and |
8.2.2 | Any conditions relating to payment of dividend or redemption amounts or any other financial terms shall be no less favourable to the Company than those applicable to the IIF Preference Shares terms. |
8.3 | On and from the date of Completion: |
8.3.1 | ATC shall be deemed to be a party to the Investment Agreement; |
8.3.2 | The Investment Agreement shall be deemed to have automatically terminated as against TTSL and QTIPL, except to the extent of the rights, remedies and liabilities already accrued to or against them; |
8.3.3 | The term Promoter Group under the Investment Agreement shall be deemed to refer to ATC and not TTSL and QTIPL; |
8.3.4 | The term Control under the Investment Agreement shall mean the power to direct the management or policies of a Person, directly or indirectly, whether through the ownership of shares or other securities, by contract or otherwise; provided that, in any event, the direct or indirect ownership of more than fifty percent (50%) of the securities of a Person is deemed to constitute Control of that Person, and the terms Controlling and Controlled under the Investment Agreement have corresponding meanings. |
8.4 | Each of the Parties agrees to refrain from taking any action and to refrain from doing or causing to be done, anything which could reasonably be expected to impede or impair the rights and obligations of the Investor under this Clause 8. |
8.5 |
The provisions of this Clause 8 shall apply mutatis mutandis to the preference shares issued to the Tatas or QTIL prior to the Execution Date for purposes of enabling the |
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Company to make payments to IIF in relation to the IIF Preference Shares. |
9. | INFORMATION, ACCOUNTING RECORDS AND AUDIT |
9.1 | Information |
9.1.1 | At all times during the term of this Agreement, the Company shall, and the Investor shall ensure that the Company shall, prepare, submit and furnish to each Shareholder and/or its representative the following: |
(a) | Until the expiry of the Macquarie Put Period, (i) quarterly financial statements (including an income statement, a statement of cash flow and a balance sheet), reviewed by a Big Four audit firm or an Indian Audit Firm and approved by the board of directors of the Company, in accordance with the historical practice of the Company existing prior to the Execution Date (other than with respect to practice on timelines), within sixty (60) days, of the end of each quarter (other than the fourth quarter of the Financial Year); (ii) unaudited quarterly financial statements (including an income statement, a statement of cash flow and a balance sheet), for the fourth quarter of the Financial Year within sixty (60) days of the end of such fourth quarter; |
(b) | Annual audited financials within one hundred and twenty (120) days of the end of each Financial Year; |
(c) | An Annual Business Plan (containing a quarterly income statement, a statement of cash flow and a balance sheet), no later than thirty (30) days before the beginning of each Financial Year; |
(d) | Internal audit reports prepared by the Company in accordance with Clause 9.3.1; |
(e) | Monthly financial and operational statements of the Company and statement on the gross debt (excluding the working capital loans) to equity ratio of the Company, within fifteen (15) days of the end of each month in substantially the same form as the Company was providing such monthly statements prior to the Effective Date; |
(f) | A written confirmation of the percentage of equity Shareholding to any of the Shareholding of the Company, within thirty (30) days of the expiry of the Financial Year and also within thirty (30) days of any change in the Shareholding of the Company; |
(g) |
Information regarding the following events in relation to the Company within a period of seven (7) days following such event (i) acquisition bids made by the Company, (ii) addition or loss of a major telecommunications customer, (iii) arbitration proceeding with a material customer (more than five percent (5%) of the total revenues of the Company), (iv) material |
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changes in the Master Lease Agreement (having impact of more than five percent (5%) revision in total revenues of the Company from such Master Lease Agreement), (v) loss or termination in key managerial personnel of the Company; and (vi) entry into a new (adjacent) business; |
(h) | Such other information as may be reasonably requested by the Shareholders (or their representatives) as reasonably conforms to the past practice and processes of the Company, subject to the same being available with the Company. |
9.1.2 | The Company shall keep complete and accurate books of Accounts and shall produce monthly Accounts fairly representing the state of affairs of the Business. |
9.1.3 | Each of the Shareholders shall have the right, after providing notice of at least ten (10) Business Days, to inspect and audit, or cause to be inspected and audited, the business records, bookkeeping and accounting records, income tax records and returns, and other records of the Company. The Company shall provide each Shareholder with reasonable access, including as part of any inspection and audit, to the Companys senior management to enable such Shareholder to discuss the affairs and operations of the Company. The costs and expenses associated with exercise of the right prescribed under this Clause 9.1.3 shall be borne and paid for by such Shareholder. |
Provided that the rights of the Shareholders in this Clause 9.1.3 shall be exercisable by such Shareholders up to a maximum of two times in a Financial Year.
9.1.4 | At all times during the term of this Agreement, the Investor shall furnish to each Shareholder and/or its representative, the information listed in Clauses 9.1.1 (a) to (g) above in relation to the ATC India Entities, as per the time lines respectively prescribed in Clauses 9.1.1 (a) to (g). |
9.1.5 | Where as a result of an activity carried on or proposed to be carried on by the Company a Government Entity makes an inquiry or request for information in relation to a legal, compliance or regulatory requirement pertaining to any Shareholder, the Shareholders shall use commercially reasonable efforts to co-operate with one another and the Company in relation to that inquiry or request and each shall provide all commercially reasonable information and assistance lawfully required by such Government Entity upon request from the other Party. |
9.1.6 | It is agreed that, notwithstanding the conversion of the Company into a private limited company, the inspection and information rights of a shareholder under applicable Law as they apply to an unlisted public limited company shall continue to be available to the Shareholders in relation to the Company. |
9.2 | Consultation |
The Company shall make available to the Shareholders agents, representatives, and third
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party independent consultants, auditors and technical experts (the Third Party Consultants ) such information and documents as the Company is obligated to provide to its shareholders under the Companies Act provided , however , that any and all costs or expenses associated with such provision shall be borne and paid for by such Shareholder. Such Shareholders agents, representatives, and the Third Party Consultants shall (x) minimize any disruption and burden to the Company, its management and its employees during such review, and (y) keep any such information confidential as Confidential Information in accordance with Clause 20, and such Shareholder shall be responsible for any breach of such obligations by such Persons.
9.3 | Auditors |
9.3.1 | The Company shall appoint any one of the Big Four as the statutory auditor of the Company. The Company may elect to appoint any one of the Indian Audit Firms as the internal auditor of the Company or it may utilize the ATC Global Internal Audit unit, which reports to the ATC Board of Directors, as the internal auditor. In either case, the audit reports generated for the Company may be reviewed by the shareholders, and if a particular material report is undertaken by ATC Global Internal Audit, and there are material concerns or issues identified with the findings therein or the remedies proposed therein or if atleast two (2) Continuing Shareholders are not otherwise satisfied with the manner in which the internal audit has been conducted by the ATC Global Internal Audit, such Continuing Shareholders may request that a follow on review be undertaken, at the cost of the Company, by an independent Indian Audit Firm, provided that if at the relevant time there is only one (1) Continuing Shareholder then such Continuing Shareholder may exercise such right, acting alone. |
9.3.2 | The annual standalone and consolidated financial statements (including balance sheet, cash flow statement and profit and loss account) of the Company shall be prepared and certified by the statutory auditor of the Company. |
9.4 | Accounting Principles |
The financial statements of the Company shall be prepared in accordance with applicable Laws and the Accounting Principles. The Investor shall ensure that the Accounting Principles used by the Company are applied consistently. In the event that any change in the Accounting Principles followed by the Company prior to the Effective Date, other than a change in Accounting Principles solely pursuant to requirement of applicable Law, affects the determination of EBITDA, then for the purposes of calculation of the EBITDA for any purpose under this Agreement, including for the calculation of the Per Share Fair Market Value, the Put Option Price and the Call Option Price, the EBITDA shall be restated for the relevant purpose under this Agreement to ensure that there is no impact of such change in Accounting Principles on such purpose.
9.5 | Dividend Policy |
9.5.1 |
Upon the expiry of March 31, 2021, in the event MSIIPL or SMIT (or their |
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permitted transferees) is still a Shareholder, the Company and the Investor shall ensure that every Annual Business Plan adopted thereafter provides for, and is drafted with the objective, of maximizing the dividend payout to the Shareholders. Such Annual Business Plan shall provide that all cash available with the Company after having accounted for Allowed Transactions approved by the Board, capital requirements (such cash availability being determined after having achieved the Permitted Debt Ratio) taken by the Company for the organic capital expenditures and acquisitions as provided in the Annual Business Plan approved by the Board is distributed (subject to applicable Law) as dividend to the Shareholders (Dividend Policy). Provided that: |
(a) | the Dividend Policy shall not come into effect until April 1, 2022; |
(b) | the Dividend Policy shall be adjusted to account for any requirements applicable to a real estate investment trust where the corporate structure of American Tower Corporation Inc. is revised (including any corporate restructuring of its group entities) to receive allowed tax advantages of converting to a real estate investment trust; |
(c) | the Dividend Policy shall not result in (i) the Company requiring Indebtedness for its expenditures under the Annual Business Plan, subject to achieving the Permitted Debt Ratio; (ii) the impairment of growth of the Company; (iii) loss of investment opportunities for the Business; and (iv) unavailability of cash for undertaking base transreceiver stations programs or initiatives and accretive acquisitions; and |
(d) | if for the then Financial Year, the Default Annual Business Plan has been deemed approved, then the dividend shall be presented to the Board prior to distribution to the Shareholders. |
10. | PRE-EMPTIVE RIGHTS OF SHAREHOLDERS |
10.1 | Pre-emptive Right of Shareholders |
10.1.1 | Other than any Excluded Securities, no further Securities shall be issued by the Company to any Person (whether a Shareholder or not) unless such Securities are first offered to all of the Shareholders as nearly as possible in proportion to the Shareholding (considered on a Fully Diluted Basis) of each of the Shareholders on the date of the offer in accordance with this Clause 10. |
10.1.2 | Subject to the other provisions of this Agreement, in the event the Company is desirous of issuing any new Securities (including by way of a preferential issue but other than any Excluded Securities) (the Proposed Issuance ), the Company shall provide to each Shareholder (each, a Pre-emptive Right Holder ) a pre-emptive right of subscription in the Proposed Issuance, on a pro rata basis, based on its respective Shareholding in the Company prior to the Proposed Issuance (the Pre-emptive Right ). |
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10.1.3 | The Pre-emptive Right shall be offered by the Company by issuing a written notice to each Shareholder (the Issuance Notice ) setting forth in detail the terms of the Proposed Issuance, including the Proposed Issuance price, which shall not be less than the Per Share Fair Market Value (the Issuance Price ), the date of closing of the Proposed Issuance (which shall not be fewer than sixty (60) days from the date of the Issuance Notice) and the number of Securities proposed to be issued (the Issuance Shares ). |
10.2 | Issuance to Third Parties |
10.2.1 | If any Pre-emptive Right Holder wishes to exercise its Pre-emptive Right, then such Pre-emptive Right Holder shall provide written notice to the Company within fifteen (15) days from the date of receipt of the Issuance Notice stating (a) that it wishes to exercise the Pre-emptive Right and (b) the number of Equity Shares it proposes to subscribe to in the Proposed Issuance. To the extent that any Pre-emptive Right Holder does not wish to exercise or fully exercise its right to subscribe for its full entitlement, the following shall apply: |
(a) | The Pre-emptive Right Holder shall have the right to renounce its right to subscribe to its pro rata share in the Issuance Shares in favour of any of its Affiliates. |
(b) | To the extent that any Pre-emptive Right Holder (along with its Affiliates) does not wish to exercise or fully exercise its right to subscribe for its full entitlement, the Pre-emptive Right Holder shall intimate the Company and the other Pre-emptive Right Holders (each, an Intimation ) about the same. Upon the receipt of an Intimation, each other Pre-emptive Rights Holder shall have the right to subscribe to any such unsubscribed portion of the Issuance Shares in proportion to its Shareholding (considered on a Fully Diluted Basis) and for this purpose, the other Pre-emptive Right Holders shall intimate their intention to subscribe to such unsubscribed portion of the Issuance Shares within seven (7) days of the receipt of an Intimation from the Company. |
10.3 | Within sixty (60) days from the date of the Issuance Notice (the Issuance Period ), any Pre-emptive Right Holder wishing to exercise its Pre-emptive Right shall pay for and subscribe to such number of the Issuance Shares as it wishes to subscribe to (subject to a maximum of such Pre-emptive Right Holders pro rata entitlement in such Proposed Issuance) at the Issuance Price and on the terms and conditions set out in the Issuance Notice. If any regulatory approvals are required for such purchase and payment by the Pre-emptive Right Holder, the Issuance Period shall be extended by such further period as may be mutually agreed between the Company and the Pre-emptive Right Holder (the Extended Period ). Subject to the receipt of payment against exercise of the relevant Pre-emptive Right by the relevant Pre-emptive Right Holder, the Company shall issue and allot the Issuance Shares to the relevant Pre-emptive Right Holder on the date of closing of the Proposed Issuance as stated in the Issuance Notice. |
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10.4 | To the extent that any Pre-emptive Right Holder fails to pay the Issuance Price after exercising its Pre-emptive Right, each other Pre-Emptive Right Holder shall have the right to subscribe to any such unsubscribed Issuance Shares on a pro rata basis based on its respective shareholding in the Company within twenty (20) days from the expiry of the Issuance Period, or the Extended Period, as the case may be. |
10.5 | If (a)(i) a Pre-emptive Right Holder (along with its Affiliates), does not exercise its Pre-emptive Rights under Clause 10.2.1(b); or (ii) a Pre-emptive Right Holder (along with its Affiliates) fails to pay the Company for the exercise of its Pre-emptive Rights within the applicable time period in Clause 10.3; and (b)(i) the other Pre-emptive Right Holders have not exercised the option under Clause 10.4 to subscribe to the unsubscribed Issuance Shares; or (ii) under Clause 10.4, a Pre-emptive Right Holder exercises the right to subscribe to unsubscribed Issuance Shares and fails to pay the Company against such exercise (the events in (a) and (b) above, collectively, the Trigger Events ), then the Company may, within ninety (90) days from the occurrence of the last of the Trigger Events, issue and allot the unsubscribed Issuance Shares to a third party subscriber ( Third Party Subscriber ) at a price not less than the Issuance Price mentioned in the Issuance Notice by providing notice to such Third Party Subscriber. Notwithstanding any provision herein to the contrary, such Issuance Price shall be no less than the Per Share Fair Market Value. |
10.6 | If the Company decides to seek the investment for the Proposed Issuance from a Third Party Subscriber in accordance with this Clause 10, the Proposed Issuance shall be completed within ninety (90) days from the occurrence of the last Trigger Event or by such other period as may be mutually agreed between the Parties for obtaining regulatory approvals, failing which the right of the Company to make the Proposed Issuance shall lapse and the provisions of this Clause 10 shall once again apply to such Proposed Issuance. |
10.7 | The Parties agree that the issuance of Issuance Shares to (a) a Pre-emptive Right Holders Affiliate, or (b) a Third Party Subscriber, shall be valid only if the Affiliate or Third Party Subscriber (x) is not a Competitor, and (y) has executed a Deed of Adherence in the form specified in Schedule 3 and a duly executed copy of such Deed of Adherence is placed before the Board prior to such issuance. |
10.8 | The Parties agree that the Investor shall have the right to require the Company to issue Equity Shares to the Investor pursuant to a Clawback Subscription and the provisions of this Clause 10 shall not apply to the Clawback Subscription. |
11. | TRANSFERS OF SHARES |
11.1 | Lock-In |
11.1.1 |
Notwithstanding anything contained in this Agreement, including, Clauses 11.5 and 11.6, the Investor shall not be entitled to Transfer any Securities of the Company or any rights, entitlements or beneficial interest therein to any Third Party such that the Investor would own less than the Shareholding held by the |
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Investor on the Completion Date immediately post Completion until the earlier of: (a) the expiry of the Macquarie Put Period; and (b) the Investor having purchased the entire Share Capital held by TTSL,TSL, MSIIPL, SMIT and IDFCPE III ( Lock-In Period ). Further, during such Lock-in Period, as long as the Investor continues to be a special purpose company holding the Shares or Securities of the Company and does not have any other material business activities or investments, there shall be no Transfer of equity interest in the Investor, if pursuant to such Transfer, the effective economic ownership of American Tower Corporation, directly or indirectly through its subsidiaries, in the Company shall fall below 51%. Such restriction shall mutatis mutandis apply to any holding companies of the Investor which are also special purpose companies holding directly or indirectly through other intermediate special purpose companies, shares or securities of the Investor and which do not have any other material business activities or investments ( Holding Companies ). For avoidance of doubt, the restrictions in this Clause 11.1.1 shall not apply to (i) any primary investment in the Investor or any of its holding companies; or (ii) any Transfer of interest in any holding company which is not merely a special purpose vehicle for purposes of holding, directly or through other intermediate special purpose company, the Shares of the Shares or Securities of the Company and has other material business activities or investments; or (iii) any direct or indirect holding company (even if a special purpose company) of a holding company referred to in (ii) above. |
11.1.2 | Subject to the provisions of Clause 11.1.1 above, in the event that (i) the Investor undertakes any Transfer of Securities to a Third Party during the Lock-In Period over and above the Investors Shareholding on the Completion Date; or (ii) American Tower Corporation or its Affiliates undertake any transaction or action during the Lock-In Period that has the effect of dilution or Transfer, whether directly or indirectly, of any Shareholding or any beneficial interest of the Investor and/or its Affiliates in the Company that is over and above the Shareholding and beneficial interest held the Investor and its Affiliates in the Company as on the Completion Date immediately post Completion, the Investor shall ensure that, |
(a) | prior to the Transfer by the Investor to a Third Party transferee, the Third Party transferee shall execute a Deed of Adherence in the form specified in Schedule 3 and a duly executed copy of such Deed of Adherence shall be placed before the Board; |
(b) | in cases where there is a Transfer of securities in any of American Tower Corporations Affiliates or the Company for consideration in cash or cash equivalents, the Shareholders shall be given a right to exercise their Tag Along Rights under Clause 11.7 with immediate effect through a sale of their Pro-rata Shares to such Third Party transferee in accordance with Clause 11.7 which shall mutatis mutandis apply to this Clause 11.1.2; |
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(c) | the Investor shall not, and shall ensure that the Company does not, grant any rights to such Third Party that are more favourable than the rights of the Continuing Shareholders under this Agreement. |
11.1.3 | Notwithstanding anything contained in this Clause 11.1, the Investor shall ensure that American Tower Corporation shall, at all times, directly or indirectly through its subsidiaries, own at least fifty one percent (51%) of the shareholding of the Investor and American Tower International Inc and directly or indirectly Controls the Investor and American Tower International Inc. |
11.1.4 | The Investor shall inform the Continuing Shareholders in writing of any change in shareholding of the Investor and/or of any Holding Company within 30 days of such change. |
11.2 | Restrictions on Transfers |
11.2.1 | No Shareholder shall Transfer or otherwise dispose of its Shares in the Company, except in accordance with and subject to the terms and conditions set forth in this Agreement and more particularly in this Clause 11. Any Transfer in breach of this Agreement and/or the Charter Documents shall be null and void ab initio . |
11.2.2 | The Company hereby agrees and confirms that, to the extent permissible under applicable Law, it shall not record in its books any Transfer of, or any agreement or arrangement to Transfer, recognize or register any equitable or other claim to, or any interest on, pay any dividend on or accord any right to vote with respect to, any Shares that have been transferred in any manner other than as permitted under this Agreement and the Charter Documents. |
11.2.3 | The Parties agree that nothing contained in Clauses 11.3, 11.4, 11.5, .and 11.6 shall apply to inter se Transfers by a Shareholder to any of its Affiliates, provided that such Affiliate is not a Competitor. The Transfer of Shares to such Affiliate shall be valid only if prior to such Transfer the relevant Affiliate has executed a Deed of Adherence in the form specified in Schedule 3 and a duly executed copy of such Deed of Adherence is placed before the Board prior to such Transfer. For the purposes of this Clause 11.2.3, any inter se Transfers between TTSL and TSL, TOF, Tata Industries Limited, Tata Teleservices (Maharashtra) Limited and Tata Communications Limited, shall not be regarded as a Transfer to a Competitor. |
11.2.4 |
Where any Partys Affiliate is a Shareholder, (a) if at any point of time, any transaction is contemplated pursuant to which such Person would, on successful completion of said transaction, cease to be an Affiliate of the Party or except in the case of the Investor, becomes a Competitor, then (as also provided in the Deed of Adherence in Schedule 3) prior to completion of said transaction, the relevant Party and such Person shall forthwith take all necessary actions to ensure that the Shares are transferred by such Person back to the relevant Party or any other Affiliate of the relevant Party; and (b) such Affiliate shall act together with the relevant Shareholder and each shall exercise its respective rights and powers in |
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the Company so as to give effect, and adhere to, and comply with, the terms of this Agreement; (c) each of (1) MSIIPL and SMIT, acting jointly, and (2) IDFCPE III shall exercise its rights under this Agreement separately and shall not act in concert or enter into any agreement or understanding to act as a shareholder block for the purposes of this Agreement. |
11.2.5 | Each Shareholder shall have the right to receive information that it reasonably requests regarding any Third Party prospective purchaser of the Shares of the Company to confirm whether the prospective purchaser is in violation of, or under investigation in relation to, Anti-Bribery Laws. |
11.2.6 | No Shareholder shall transfer any Shares of the Company if the prospective purchaser is listed in the published sanctions lists maintained by the Office of Foreign Assets Control of the United States Treasury Department. |
11.2.7 | For the avoidance of doubt, (a) nothing contained in this Clause 11 limits or restricts any Restructuring of the Investor or any Affiliate of the Investor, provided such Restructuring does not otherwise diminish or circumvent the rights of TTSL and TSL, MSIIPL and SMIT or IDFCPE III, in their reasonable opinion, and (b) except for Clause 11.2.3, Clause 11.2.4, and 11.2.6 nothing contained in this Clause 11 limits or restricts transfers between the Investor and any Affiliate of the Investor. |
11.2.8 | Notwithstanding anything contained in this Agreement, no Party shall Transfer any Securities to a Competitor, other than a Transfer by a Shareholder in accordance with Clause 11.2.3. Provided that, any inter se Transfers between TTSL and TSL, TOF, Tata Industries Limited, Tata Teleservices (Maharashtra) Limited and Tata Communications Limited, shall not be regarded as a Transfer to a Competitor. |
11.2.9 | Notwithstanding anything contained in this Agreement, the Investor agrees that MSIIPL and SMIT shall have the right, at all times, to Transfer any part of or the whole of their Shareholding in the Company on an arms length basis to any Person, other than (i) a Competitor; or (ii) a Person, or a body corporate controlled by such Person or of which such Person is a senior management personnel, listed in the published sanctions lists maintained by the Office of Foreign Assets Control of the United States Treasury Department. The Investor, MSIIPL and SMIT agree that, for the purposes of the Transfer under this Clause 11.2.9: |
(a) | MSIIPL and SMIT shall provide a written notice to the Investor informing the Investor of any letter or intent, memorandum of understanding or any such arrangement entered into by MSIIPL and/or SMIT with a proposed transferee for the sale of Shareholding in the Company, within 7 (seven) days of entering into such arrangement; |
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(b) | MSIIPL and/ or SMIT shall provide a written notice to the Investor of any such Transfer, 45 (forty five) days prior to the completion of the Transfer; |
(c) | MSIIPL and SMIT shall have the right to disclose information and conduct a reasonable due diligence (and that is customary in terms of scope and timelines) in respect of the Company that is reasonably necessary to permit the proposed transferee to evaluate the business of the Company. |
Provided that (i) such due diligence shall be conducted not exceeding once every Financial Year and shall be at the cost of MSIIPL/SMIT and/or the transferee; and (ii) MSIIPL, SMIT and the Investor shall agree, in good faith, upon the measures for protecting the confidentiality of the information prior to such dissemination;
(d) | All rights, as of the time of the transfer, available to MSIIPL and SMIT under this Agreement shall stand transferred to the transferee of MSIIPLs and SMITs Shareholding upon the execution of a Deed of Adherence, provided that in case of one or more Transfers of part of the Shareholding, MSIIPL and SMIT may transfer their rights under this Agreement to only one eligible transferee or purchaser in such Transfer. |
Provided that (i) the right of MSIIPL and SMIT under Clause 6 relating to the Affirmative Vote Matters listed in items 4, 5 and 12 of Part A, shall not stand Transferred after June 30, 2019; and (ii) the Macquarie Put Option and Macquarie Call Option shall immediately cease to be available to the respective Parties, it being clarified that in such event the transferee shall not have any right to require the Investor to purchase its Shareholding in the Company and the Investor shall not have any right to require the transferee to sell its Shareholding in the Company to the Investor.
11.2.10 | Notwithstanding anything contained in this Agreement, the Investor agrees that in the event of a proposed Transfer by TTSL or TSL of any part of or the whole of their Shareholding in the Company to any Person in accordance with this Agreement, TTSL and TSL shall have the right to disclose information and conduct a reasonable due diligence (and that is customary in terms of scope and timelines) in respect of the Company that is reasonably necessary to permit the proposed transferee to evaluate the business of the Company. |
Provided that (i) such due diligence shall be conducted not exceeding once every Financial Year and shall be at the cost of TTSL/TSL and/or the transferee; and (ii) TTSL/TSL and the Investor shall agree, in good faith, upon the measures for protecting the confidentiality of the information prior to such dissemination.
11.3 | Right of First Offer on Exit by IDFCPE III |
11.3.1 |
Subject to the provisions of Clause 11.2, in the event IDFCPE III desires to |
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Transfer all or part of the Shares then owned by it, then IDFCPE III shall issue a written notice (the ROFO Notice ) to the Investor, TTSL and TSL informing them of its intent to Transfer the Shares held by it and specifying the number of Shares proposed to be Transferred. Each of the Investor, TTSL and TSL (each, a Minority Purchasing Shareholder ) shall have the right but not the obligation to, within a period of thirty (30) Business Days from receipt of the ROFO Notice (the Minority ROFO Period ) issue a written notice to IDFCPE III, offering to purchase all, but not less than all, of the Shares so offered in proportion to its respective Shareholding (the Minority ROFO Offer Notice ). The Minority ROFO Offer Notice shall set out the number of Shares and price at which the Minority Purchasing Shareholder is willing to purchase its entitlement of Shares of IDFCPE III (the Minority Option Price ). |
11.3.2 | If any Minority Purchasing Shareholder declines to purchase the applicable Shares by written notice to both IDFCPE III and the other Minority Purchasing Shareholder (the Rejection Notice ), or fails to provide the Minority ROFO Offer Notice prior to the termination of the Minority ROFO Period, then, the other Minority Purchasing Shareholder shall within a period of fifteen (15) Business Days from receipt of the Rejection Notice or the termination of the Minority ROFO Period, as applicable, to send a written notice to IDFCPE III, revising its original offer (and without being bound in any manner by the original Minority Option Price offered) and either providing a revised offer to purchase all, but not less than all, of the Shares so offered (the Second Minority ROFO Offer Notice ). The Second Minority ROFO Offer Notice shall set forth the number of Shares and the proposed Minority Option Price of such Minority Purchasing Shareholder. Failure by the other Minority Purchasing Shareholder to issue the Second Minority ROFO Offer Notice shall be deemed to be a refusal by such Shareholder to exercise its rights under this Clause 11.3 and the provisions of Clause 11.3.4 shall apply to the sale of such Shares. |
11.3.3 | If IDFCPE III agrees to Transfer its Shares, it shall intimate each Minority Purchasing Shareholder, as applicable, of the same in writing within seven (7) Business Days of receipt of a Minority ROFO Offer Notice, or the Second Minority ROFO Offer Notice, as the case may be. The applicable Minority Purchasing Shareholder and IDFCPE III shall complete the sale and purchase of the offered Shares as per Clause 11.9 below. |
11.3.4 |
If (a) each Minority Purchasing Shareholder either (i) fails to exercise its option under this Clause 11.3 or (ii) provides IDFCPE III with a Rejection Notice or (iii) IDFCPE III is not willing to Transfer the Shares at the applicable Minority Option Price, then, subject to the terms of this Clause 11.3, at any time within ninety (90) Business Days from the date of receipt of (a) a Rejection Notice, (b) a Minority ROFO Offer Notice or Second Minority ROFO Offer Notice (where IDFCPE III has not accepted the Minority Option Price) or (c) the expiration of the Minority ROFO Period or the Second Minority ROFO Period, whichever is later, then IDFCPE III can Transfer the Shares, with all the rights available to them under the Definitive Agreements, to any Third Party (other than a Competitor); provided |
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however that (i) the sale shall be for a higher price and on other terms no more favourable to the Third Party than those offered by the Minority Purchasing Shareholders (if any such offer has been made by any of the Minority Purchasing Shareholders); (ii) immediately upon and as a condition of the effectiveness of such Transfer, such Third Party shall assume and agree, by executing the Deed of Adherence, to carry out all the obligations (including but not limited to the obligations under Clause 14 pertaining to the Call Option) of IDFCPE III or, if applicable, any Affiliate of IDFCPE III; and (iii) IDFCPE III provides each Minority Purchasing Shareholder a notice no fewer than ten (10) Business Days prior to the proposed Transfer with the following information: (A) the number of Securities IDFCPE III owns (on a Fully Diluted Basis) prior to the proposed Transfer; (B) the number of Securities proposed to be Transferred by IDFCPE III; (C) the proposed consideration amount and form of consideration; (D) the manner and time of payment of the consideration; (E) the proposed date of consummation of the proposed Transfer; (F) to the extent possible, the identity of the Third Party; (G) the rights which are proposed to be granted/transferred to such Third Party; and (H) a representation that the Third Party stated herein has been informed of this right of first offer. In the event that (a) IDFCPE III does not transfer to a Third Party within such period, and (b) subsequently desires to Transfer all or part of the Shares then owned by it, the process noted under this Section 11.5.2 shall be repeated. |
11.3.5 | It is clarified that nothing herein shall prejudice the rights of the Investor under Clause 14 in relation to the Call Option. It is further agreed that the Put Option Price or the Call Option Price in relation to the exercise of an Option with respect to any Third Party that acquires Shares from IDFCPE III shall only be the Per Share Fair Market Value. |
11.4 | Right of First Offer on Exit by TTSL and TSL After the Expiry of the Second Put Period |
11.4.1 |
Subject to the provisions of Clause 11.2, in the event either TTSL or TSL desires to Transfer all or part of the Shares then owned by it (the Selling Tata Shareholder ), after the expiry of the Second Put Period, then the Selling Tata Shareholder shall issue a ROFO Notice to the Investor informing it of its intent to Transfer the Shares held by it and specifying the number of Shares proposed to be Transferred, and a copy of such ROFO Notice shall be forwarded to each of MSIIPL, SMIT and IDFCPE III. The Investor shall have the right but not the obligation to, within a period of thirty (30) Business Days from the ROFO Notice (the Tata ROFO Period ), issue a written notice to the Selling Tata Shareholder, offering to purchase all but not less than all of the Shares so offered (the Tata ROFO Offer Notice ). The Tata ROFO Offer Notice shall set out the number of Shares and price at which the Investor is willing to purchase the Shares of the Selling Tata Shareholder (the Tata Option Price ). Within seven (7) Business Days of the Tata ROFO Offer Notice, if the Selling Tata Shareholder agrees to Transfer the Shares held by it at the Tata Option Price, then it shall inform the Investor of the same in writing. The Investor and the Selling Tata Shareholder |
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shall complete the sale and purchase of the offered Shares as per Clause 11.9 below. |
11.4.2 | If the Investor fails to exercise its option under this Clause 11.4 or if the Investor notifies the Selling Tata Shareholder that it has decided not to exercise such option or the Selling Tata Shareholder is not willing to Transfer the Shares at the Tata Option Price, then, subject to the terms of this Clause 11.4, at any time within ninety (90) Business Days from the date of receipt of the notice of the Investor that it has decided not to exercise such option or the Tata ROFO Offer Notice (where the Selling Tata Shareholder has not accepted the Tata Option Price) or the expiration of the Tata ROFO Period, whichever is earlier, the Selling Tata Shareholder can Transfer the Shares, with all the rights available to them under the Definitive Agreements, to any Third Party (other than a Competitor); provided , however , that (i) the sale shall be for a higher price and on other terms no more favourable to the Third Party than those offered by the Investor (if any such offer has been made by any of the Investor); (ii) immediately upon and as a condition of the effectiveness of such Transfer, such Third Party shall assume and agree, by executing the Deed of Adherence, to carry out all the obligations (including but not limited to the obligations under Clause 14 pertaining to the Call Option) of the Selling Tata Shareholder or, if applicable, any Affiliate of the Selling Tata Shareholder; and (iii) the Selling Tata Shareholder provides the Investor a notice no fewer than ten (10) Business Days prior to the proposed Transfer with the following information: (A) the number of Securities the Selling Tata Shareholder owns (on a Fully Diluted Basis) prior to the proposed Transfer; (B) the number of Securities proposed to be Transferred by the Selling Tata Shareholder; (C) the proposed amount of consideration; (D) the manner and time of payment of the consideration; (E) the proposed date of consummation of the proposed Transfer; (F) to the extent possible, the identity of the Third Party; (G) the rights that are proposed to be granted/transferred to such Third Party; and (H) a representation that the Third Party stated herein has been informed of this right of first offer. In the event that (a) the Selling Tata Shareholder does not transfer to a Third Party within such period, and (b) subsequently desires to Transfer all or part of the Shares then owned by it, the process noted under this Section 11.5.2 shall be repeated. |
11.4.3 | It is clarified that nothing herein shall prejudice the rights of the Investor under Clause 14 in relation to the Call Option. It is further agreed that the Put Option Price or the Call Option Price in relation to exercise of an Option with respect to any Third Party that acquires Shares from a Selling Tata Shareholder shall only be the Per Share Fair Market Value. |
11.5 | Right of First Offer on Exit by Investor |
11.5.1 |
Subject to the provisions of Clause 11.2, in the event the Investor desires to Transfer all or part of the Shares then owned by it, then the Investor shall issue a ROFO Notice to TTSL and TSL informing them of its intent to Transfer the Shares held by it and specifying the number of Shares proposed to be Transferred, |
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and a copy of such ROFO Notice shall be forwarded to each of the MSIIPL, SMIT and IDFCPE III. TTSL and TSL shall have the right but not the obligation to, within a period of thirty (30) Business Days from the ROFO Notice (the Investor ROFO Period ), issue a written notice to the Investor, offering to purchase all, but not less than all, of the Shares so offered (the Investor ROFO Offer Notice ). The Investor ROFO Offer Notice shall set out the number of Shares and price at which TTSL and TSL are willing to purchase the Shares of the Investor (the Investor Option Price ). Within seven (7) Business Days of the Investor ROFO Offer Notice, if the Investor agrees to Transfer the Shares held by it at the Investor Option Price, then it shall inform the relevant Tatas of the same in writing. The Investor and the relevant Tatas shall complete the sale and purchase of the offered Shares as per Clause 11.9 below. |
11.5.2 | If TTSL and TSL fail to exercise the option under this Clause 11.5 or if both TTSL and TSL notify the Investor that they have decided not to exercise such option or the Investor is not willing to Transfer the Shares at the Investor Option Price, then, subject to the terms of this Clause 11.5, at any time within ninety (90) Business Days from the date of receipt of the notice of TTSL and TSL that they have decided not to exercise such option or the Investor ROFO Offer Notice (where the Investor has not accepted the Investor Option Price) or the expiration of the Investor ROFO Period, whichever is earlier, the Investor can Transfer the Shares, with all the rights available to it under the Definitive Agreements, to any Third Party (other than a Competitor); provided , however , that (i) the sale shall be for a higher price and on other terms no more favourable to the Third Party than those offered by TTSL and TSL; (ii) immediately upon and as a condition of the effectiveness of such Transfer, such Third Party shall assume and agree, by executing the Deed of Adherence, to carry out all the obligations of the Investor or, if applicable, any Affiliate of the Investor; and (iii) the Investor provides TTSL and TSL a notice no fewer than ten (10) Business Days prior to the proposed Transfer with the following information: (A) the number of Securities the Investors owns (on a Fully Diluted Basis) prior to the proposed Transfer; (B) the number of Securities proposed to be Transferred by the Investor; (C) the proposed amount of consideration; (D) the manner and time of payment of the consideration; (E) the proposed date of consummation of the proposed Transfer; (F) to the extent possible, the identity of the Third Party; (G) the rights that are proposed to be granted/transferred to such Third Party; and (H) a representation that the Third Party stated herein has been informed of this right of first offer. In the event that (a) the Investor does not transfer to a Third Party within such period, and (b) subsequently desires to Transfer all or part of the Shares then owned by it, the process noted under this Section 11.5.2 shall be repeated. |
11.6 | Right of First Refusal on Exit by TTSL or TSL |
11.6.1 |
Subject to the provisions of Clause 11.2, in the event the Tatas desires to Transfer all or part of the Shares then owned by them to any third party (other than a Competitor) prior to the expiry of the Second Put Period, then the Tatas (the |
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Selling Existing Shareholder ) shall provide the Investor a right of first refusal to such Transfer as set out in this Clause 11.6. |
11.6.2 | If any of the Selling Existing Shareholders propose to Transfer any Shares, then, such Selling Existing Shareholders shall first give a written notice (hereinafter referred to as the ROFR Offer Notice ) to the Investor. The ROFR Offer Notice shall state (i) the number of Shares proposed to be Transferred (hereinafter referred to as the Existing Shareholders Sale Shares ) and the number and class of Shares the Selling Existing Shareholder owns at that time, (ii) the name and address of the proposed transferee (who cannot be a Competitor), (iii) the proposed price, including the proposed amount and form of consideration and material terms and conditions offered by such proposed transferee, (iv) the date of consummation of the proposed Transfer. The total value of the consideration for the proposed Transfer is referred to herein as the ROFR Offer Price . Such notice shall be accompanied by a true and complete copy of all documents, if any at that time, constituting the agreement up to such date between the Selling Existing Shareholder and the proposed transferee regarding the proposed Transfer. |
11.6.3 | The Investor shall be entitled to respond to the Existing Shareholder ROFR Offer Notice by serving a written notice (the ROFR Response Notice ) on the relevant Selling Existing Shareholder/(s) prior to the expiry of 15 (fifteen) Business Days from the date of receipt of the ROFR Offer Notice (the ROFR Offer Period ) confirming or declining the exercise of their right of first refusal over all, but not less than all of the Existing Shareholders Sale Shares. In the event that the Investor decides to exercise its right of first refusal over all, but not less than all of the Existing Shareholders Sale Shares, the relevant Selling Existing Shareholder/(s) shall Transfer Existing Shareholders Sale Shares to the Investor as mentioned in the ROFR Response Notice at the same price and on the same terms as are mentioned in the ROFR Offer Notice. If completion of the sale does not take place within thirty (30) Business Days of the ROFR Offer Period (the ROFR Completion Period ), then the Investors right of first refusal under Clause 11.6 shall stand suspended for a period of One Hundred Eighty (180) Business Days commencing from the last day of the ROFR Completion Period. During this period of One Hundred Eighty (180) Business Days (the Free Period ), the Selling Existing Shareholder shall be free to sell the Existing Shareholders Sale Shares (not at a price lower than the ROFR Offer Price) to the proposed transferee mentioned in the ROFR Offer Notice. |
11.6.4 |
In the event the Investor does not deliver a ROFR Response Notice to the Selling Existing Shareholders prior to the expiry of the ROFR Offer Period, then upon the expiry of the ROFR Offer Period, the Selling Existing Shareholder shall be entitled to Transfer the Selling Existing Shareholder Sale Shares to the proposed transferee mentioned in the ROFR Offer Notice on materially the same terms and conditions and for the consideration no less than as is specified in the ROFR Offer Notice. Any transferee purchasing the Selling Existing Shareholder Sale Shares shall deliver to the Selling Existing Shareholders on or before the date of consummation of the proposed Transfer, specified in the ROFR Offer Notice, |
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payment in full of the Offer Price in accordance with the terms set forth in the ROFR Offer Notice and any requisite transfer taxes. If completion of the sale and transfer to the proposed transferee does not take place within the period of One Hundred Eighty (180) Business Days following the expiry of the ROFR Offer Period, the Selling Existing Shareholders right to sell the Selling Existing Shareholder Sale Shares to such third party shall lapse and the provisions of Clause 11.6.3 shall once again apply to the Selling Existing Shareholder Sale Shares. |
11.6.5 | Where the Investor or the third party transferee requires prior legal, governmental, regulatory or shareholder consent for acquiring the Selling Existing Shareholder Sale Shares pursuant to this Agreement, then, notwithstanding any other provision of this Agreement, that Person shall only be obliged to acquire the shares once such consent or approval is obtained, and the Parties shall use their reasonable endeavours to obtain any such required approvals. Any period within which a Transfer of the Selling Existing Shareholder Sale Shares by the Selling Existing Shareholders has to be completed shall be extended by such further period as is necessary for the purpose of obtaining the above approvals. |
11.7 | Tag Along Rights |
11.7.1 | Subject to Clause 11.1 and Clause 11.5, but without prejudice to the non-exercise of the right under Clause 11.5 by TTSL and TSL or non-acceptance by the Investor, and at any time after the Effective Date, if the Investor is desirous of Transferring any or all of the Securities held by it to any Third Party or if the Investor receives any offer from any Third Party to purchase its Securities that it proposes to accept, then, the Investor shall issue a written notice (the Tag Along Offer Notice ) to TTSL and TSL and MSIIPL, SMIT and IDFCPE III of such proposed Transfer of Securities at least thirty (30) Business Days prior to the proposed Transfer. |
11.7.2 | The Tag Along Offer Notice shall state the following: (a) the number of Securities the Investor owns (on a Fully Diluted Basis) prior to the proposed Transfer; (b) the number of Securities proposed to be Transferred by the Investor; (c) the proposed consideration, amount and form of consideration and other terms and conditions proposed by such Third Party (including basic representations and warranties and indemnities not to exceed the purchase consideration related to such transfer to be given in connection with such Transfer); (d) the manner and time of payment of the consideration; (e) the proposed date of consummation of the proposed Transfer; (f) to the extent possible, the identity of the Third Party; (g) the rights that are proposed to be granted/transferred to such Third Party; (h) a representation that the Third Party stated in the Tag Along Offer Notice has been informed of the Tag Along Right; and (i) a representation that no consideration other than that set out in the Tag Along Offer Notice is being provided to the Investor. Such Tag Along Offer Notice shall be accompanied by true and complete copy of all agreements, if any, between the Investor and the Third Party regarding the proposed Transfer. |
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11.7.3 | Each of TTSL and TSL and MSIIPL, SMIT and IDFCPE III (the Tag Along Shareholders ) may, on the receipt of a Tag Along Offer Notice, at its sole discretion, participate in such Transfer through a sale of its Pro-rata Shares to the Third Party at a price and on the commercial terms and conditions (limited to title representations and warranties) that are offered by the Third Party to the Investor (the Tag Along Right ). For the purposes of this Clause 11.7.3, Pro-rata Shares , in relation to a Shareholder, shall mean such number of Shares held by such Shareholder as are in the ratio of (a) the shareholding percentage of the tagging shareholder; divided by (b) the shareholding percentage of the Investor. For the purpose of calculating the Pro-rata Shares under this Clause 11.7.3, all fractions at or above 1 ⁄ 2 shall be treated as 1 and all fractions below 1 ⁄ 2 shall be ignored. In the event that, pursuant to such proposed Transfer by the Investor to the Third Party, the Investors Shareholding will fall below fifty percent (50%) (on a Fully Diluted Basis), or the Investor will lose Control of the Company, then each Tag Along Shareholders shall have the right to exercise its Tag Along Right with respect to its entire Shareholding to the Third Party. |
11.7.4 | If any of the Tag Along Shareholders intends to exercise its Tag Along Right, it shall send a notice (the Tag Along Acceptance Notice ) within twenty (20) Business Days of receipt of the Tag Along Offer Notice, inter alia , requiring the Investor to ensure that the Third Party also purchases the Pro-rata Shares, or such number of Securities with respect to which the Tag Along Shareholders have the right to exercise the Tag Along Right under Clause 11.7.5, offered by the Tag Along Shareholder (whether directly or indirectly) as are specified in the Tag Along Acceptance Notice (the Tag Along Shares ) on the same commercial terms and conditions (being the price, title representations and warranties and indemnities for title representations) that are offered to the Investor, as mentioned in the Tag Along Offer Notice. The election of each Tag Along Shareholder set forth in a Tag Along Offer Notice shall be irrevocable, and, to the extent the offer in the Tag Along Offer Notice is accepted, such Tag Along Shareholder shall be bound and obligated to consummate the Transfer on the terms and conditions set forth in this Clause 11.7. |
11.7.5 | It is expressly clarified that the Investor shall not transfer any of its Securities to the Third Party, unless such Third Party also simultaneously acquires the Tag Along Shares tendered by the Tag Along Shareholders and if the Third Party does not wish to purchase any Securities in excess of the Securities proposed to be sold by the Investor, the number of Securities to be sold by the Investor to the Third Party shall stand reduced by the number of Tag Along Shares. |
11.7.6 | The Tag Along Shareholders will not be required to provide any representations, covenants or undertakings, grant any indemnifications, or incur any obligations to the Third Party except representations pertaining to the title to their shareholding and no Encumbrance in relation to their shareholding and due authority and capacity to hold and Transfer its Shares and reasonable indemnifications supporting such representations and warranties. |
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11.7.7 | If the Tag Along Shareholders fail to issue the Tag Along Acceptance Notice within the time period specified in Clause 11.7.4 above, the Tag Along Right shall lapse and the Investor shall be entitled to complete its transfer to the Third Party, on the same terms and conditions and for the same consideration as is specified in the Tag Along Offer Notice, within a period of ninety (90) Business Days from the date of the Tag Along Offer Notice or from intimation by the Tag Along Shareholders of their refusal to exercise their Tag Along Right, whichever is earlier. If any regulatory approvals are required for exercise of such Tag Along Right, the said ninety (90) Business Day period shall be extended by such further period as may be reasonably required for obtaining such approvals (the Extended Tag Period ). If the Investor does not complete the Transfer under this Clause 11.6 within this ninety (90) Business Day period or the Extended Tag Period, the process set out in this Clause 7 shall again be followed for any Transfers of the Shares held by the Investor. |
11.7.8 | Subject to Clause 11.7.6, each Tag Along Shareholder shall take all actions as may be reasonably necessary to consummate the Transfer, including, without limitation, entering into agreements and delivering certificates and instruments, if applicable, in each case, consistent with the agreements being entered into and the certificates and instruments being delivered by the Investor. |
11.7.9 | The fees and expenses incurred in connection with a Tag Along Sale and for the benefit of all Tag Along Shareholders, to the extent not paid or reimbursed by the Company or the prospective transferee, shall be borne by each of the participating Tag Along Shareholders on a pro rata basis, based on the aggregate consideration received by each such Shareholder. |
11.7.10 | Any sale and purchase of Securities contemplated in this Clause 11.7 shall be completed in accordance with Clause 11.9 below. |
11.7.11 | Notwithstanding anything contained in this Agreement, the price offered and paid by the transferee to the Investor and the Tag Along Shareholders, if any, shall not be taken into consideration while determining the Put Option Price or the Call Option Price under this Agreement. |
11.8 | Drag Along Right |
11.8.1 | Subject to Clauses 11.1 and 11.5 and without prejudice to the non-exercise of the right under Clause 11.5 by TTSL or TSL or non-acceptance by the Investor or without prejudice to the non-exercise of the Tag Along Right by the Tag Along Shareholders, if the Investor, in one transaction or in a series of related transactions, is desirous of Transferring all of its Securities that together constitute a majority of all Shares to any Third Party that it proposes to accept (a Drag Along Sale ), then, the Investor shall issue a written notice (the Drag Along Notice ) to TTSL and TSL and MSIIPL, SMIT and IDFCPE III of such proposed Transfer of Securities at least sixty (60) Business Days prior to the proposed Transfer. |
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11.8.2 | The Drag Along Notice shall state the following: (a) the number of Securities the Investor owns (on a Fully Diluted Basis) prior to the proposed Transfer; (b) the number of Securities proposed to be Transferred by the Investor; (c) the proposed consideration, amount and form of consideration, subject to Clause 11.8.4; (d) the manner and time of payment of the consideration; (e) the proposed date of consummation of the proposed Transfer; (f) to the extent possible, the identity of the Third Party; (g) the key terms and conditions on which the agreement(s) are being entered into by the Investor with such Third Party; (h) the rights that are proposed to be granted/transferred to such Third Party; (i) a representation that the Third Party stated herein the Drag Along Notice has been informed of the Drag Along Right; and (j) a representation that no consideration other than that set out in the Drag Along Notice is being provided to the Investor. |
11.8.3 | The Investor shall have the right, after delivering the Drag Along Notice in accordance with 11.8.1 and subject to compliance with 11.9, to require that each of TTSL and TSL and MSIIPL, SMIT and IDFCPE III (the Drag Along Shareholders ) to participate in such Drag Along Sale at the same price and on the same terms and conditions (subject to Clause 11.8.4) as offered by the Third Party to the Investor (the Drag Along Right ), such that the entire remaining Shareholding (and not less than the entire remaining Shareholding) of the Drag Along Shareholders shall be sold to the Third Party. |
11.8.4 | In the event the Drag Along Notice is issued prior to the expiry of the Second Call Period, the consideration payable to the Drag Along Shareholders by the Third Party for each Share held by the Drag Along Shareholder shall be the higher of: (i) the per Share price offered by the Third Party to the Investor; and (ii) the Call Option Price. In the event the Drag Along Notice is issued after the expiry of the Second Call Period, the consideration payable to the Drag Along Shareholders by the Third Party shall be the higher of: (i) the price offered by the Third Party to the Investor; and (ii) the product of the Shares held by Shareholder and the Per Share Fair Market Value. Provided that the Investor shall not receive any amount in addition to the per share price payable by the Third Party to the Investor and the Drag Along Shareholders. |
11.8.5 | The Drag Along Shareholder will not be required to provide any representations, covenants or undertakings, grant any indemnifications, or incur any obligations to the Third Party other than providing basic representations and warranties on title and due authority and capacity to hold and Transfer its Shares and reasonable indemnifications supporting such representations and warranties. |
11.8.6 | Subject to Clause 11.8.5, each Drag Along Shareholders shall take all actions as may be reasonably necessary to consummate the Transfer, including, without limitation, entering into agreements and delivering certificates and instruments (including stock certificates evidencing the applicable Shares, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank), in each case, consistent with the agreements being entered into and the certificates and instruments being delivered by the Investor. |
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11.8.7 | The fees and expenses of incurred in connection with a Drag Along Sale shall be borne by each selling Shareholder on a pro rata basis, based on the aggregate consideration received by each such Shareholder. |
11.8.8 | Any sale and purchase of Securities contemplated in this Clause 11.8 shall be completed in accordance with Clause 11.9 below. |
11.9 | Transfer Procedures |
11.9.1 | The following principles shall apply to Transfer of Shares contemplated by this Clause 11: |
11.9.2 | All Transfers under Clause 11 shall be (a) consummated pursuant to the relevant provisions of applicable Law, and (b) undertaken in return for cash consideration (other than restructurings effected by means of merger, amalgamation, etc.). |
11.9.3 | The closing of any Transfer shall occur at such place, time and on such date as the seller and purchaser may mutually agree. At the closing of such Transfer, (a) the purchasing Shareholder shall pay the stipulated price; and (b) the selling Shareholder shall deliver (i) in case of physical shares, the share certificates evidencing the Shares transferred, and in case of dematerialised shares, a copy of the delivery instruction slips from the selling Shareholder to its depository participant; (ii) a written representation and warranty (or other provision of similar effect) that the selling Shareholder is, as of such closing, and the purchaser shall, upon such closing, be, the sole beneficial owner of such Shares with good title thereto, free and clear of all Encumbrances. |
11.9.4 | If the purchaser or the selling Shareholder, as the case may be, does not elect to exercise its rights under any of Clause 11 for any reason, this Agreement shall continue in full force and effect. |
11.9.5 | The Parties shall co-operate fully in order to consummate any Transfer undertaken in accordance with the terms of this Clause 11.9 and such cooperation shall include the use of best efforts to obtain any approvals of Governmental Authorities or other Persons that may be required for the closing of such Transfer. |
11.10 | Change in Control of the Investor / TTSL |
11.10.1 | In the event of a direct or indirect change in Control of the Investor or American Tower International, Inc., then TTSL, TSL, MSIIPL, SMIT and IDFCPE III shall, for a period of one hundred and eighty (180) days from being intimated of such change (the COC Put Period ), be entitled to require the Investor to purchase their entire Shareholding in the Company (the COC Put Option ) at a per Share price equal to the Put Option Price. All provisions of Clause 12 below shall apply mutatis mutandis to the COC Put Option (except that, notwithstanding Clause 12.1, such Put Option shall be immediately exercisable by delivery of a Put Option Exercise Notice). |
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11.10.2 | The Investor agrees and undertakes that it shall intimate TTSL, TSL, MSIIPL, SMIT and IDFCPE III, to the extent the information is publicly available but subject to any legal, statutory and contractual restrictions applicable to the Investor or its Affiliates, of any actions that may result in an event of change of Control with respect to the Investor or American Tower International, Inc., within fifteen (15) Business Days of such actions coming to the knowledge of the Investor. |
11.10.3 | The Investor undertakes that the change in Control shall not in any manner affect the Investors obligation to discharge the COC Put Option or the Put Option and/or affect American Tower International Inc.s obligations under the Shareholders Agreement Put Obligation Performance Guarantee. |
11.10.4 | In the event of a change in Control of TTSL, the Investor shall, for a period of ninety (90) days following receiving notice of the same, be entitled to require TTSL and TSL to sell their entire Shareholding (and not less than the entire Shareholding) in the Company (the COC Call Option ) at a per Share price equal to the Call Option Price. All other provisions of Clause 14 below shall apply mutatis mutandis to the COC Call Option (except that, notwithstanding Clause 14.1, such Call Option shall be immediately exercisable by delivery of a Call Option Exercise Notice during such ninety (90) day period). For the avoidance of doubt it is clarified that this Clause 11.10.4 shall not apply to (i) inter-se Transfers of Shareholding amongst Affiliates of TTSL and TSL; (ii) TOF, in the event any Shares are transferred by TTSL and/ or TSL to TOF; and (iii) Docomo ceasing to be a shareholder of TTSL or termination of any or all rights of Docomo in TTSL. |
12. | PUT OPTION |
12.1 | The Parties agree that, |
(a) | at any time during the First Put Period each of TTSL and TSL shall have the right to require the Investor to, and the Investor shall be obliged to (either itself or through its Affiliates), purchase up to fifty percent (50%) of the Shares then held by the Tatas in the Company, |
(b) | at any time during the Second Put Period, each of TTSL and TSL shall have the right to require the Investor to, and the Investor shall be obliged to (either itself or through its Affiliates), purchase up to hundred percent (100%) of the Shares then held by the Tatas in the Company; and |
(c) | at any time during the First Put Period and/or the Second Put Period, IDFCPE III shall have the right to require the Investor to, and the Investor shall be obliged to (either itself or through its Affiliates) purchase either (i) 50% (fifty percent) of the entire Shareholding; or (ii) the entire Shareholding (and not less than the entire Shareholding), of IDFCPE III; |
(each, a Put Option ):
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in each case, at a per Share price equal to the Put Option Price, by a issuing a notice in writing to the Investor, exercising its rights under this Clause 12 (the Put Option Exercise Notice ). |
12.2 | In the event that the Shareholding of Tatas is less than fifteen percent (15%) (on a Fully Diluted Basis) pursuant to a fresh issue of Securities by the Company, then, at any time on and for a period of ninety (90) days from the date on which the Board passes a resolution calling a General Meeting for approving the issuance of Securities by the Company, TTSL and TSL shall be entitled, by issuing a Put Option Exercise Notice , to require the Investor to, and the Investor shall be obliged to, purchase the entire Shareholding of TTSL and TSL for the Put Option Consideration (also a Put Option ). |
12.3 | In the event that the Shareholding of the Investor (together with its Affiliates) is above seventy four percent (74%) of the entire share capital of the Company (calculated on a Fully Diluted Basis), at any time, then each Continuing Shareholder shall be entitled to, at its sole discretion, by issuing a Put Option Exercise Notice within ninety (90) days of such Continuing Shareholder becoming aware of the Investors Shareholding crossing seventy four percent (74%), to require the Investor to, and the Investor shall be obliged to, purchase the entire Shareholding of such Shareholder for the Put Option Consideration (also a Put Option ). |
12.4 | Each Put Option Exercise Notice sent by a Shareholder exercising its Put Option (a Put Option Seller ) shall specify: (i) the Shares with respect to which the Put Option is exercised (the Put Option Shares ) and (ii) the date for completion of the sale and purchase of the Put Option Shares (the Put Option Completion Date ), which shall (except if any regulatory approvals are required for such completion) be no more than thirty (30) Business Days and no fewer than fourteen (14) Business Days from the determination of the Fair Market Value in accordance with Schedule 6. |
12.5 | A Put Option Exercise Notice served under this Clause 12 shall constitute a legally binding contract between the Investor and the Put Option Seller, for the sale and purchase of the Put Option Shares, free from any Encumbrance and with all rights attached thereto. |
12.6 |
The closing of any purchase of the Put Option Shares shall be held at the registered office of the Company on the Put Option Completion Date or at such other place as the parties to the transaction may agree in writing. The Put Option Consideration shall become due and payable on the Put Option Completion Date (subject to any extension to the extent necessary to obtain any required government or third party approvals that are required with respect to the transfer of the Put Option Shares; provided , however , that all of the parties to the transaction shall use their commercially reasonable efforts to obtain such approvals in a timely manner) and the Investor shall pay such Put Option Consideration as and when it becomes due and the Put Option Seller shall deliver any certificates representing the Put Option Shares, accompanied by duly executed share transfer forms in favour of the Investor in case of physical shares, and deliver instruction slips for the transfer of Shares to its depository participant in case of dematerialised shares. The Put Option Seller will not be required to provide any representation, covenants or undertakings, grant any indemnifications, or incur any obligations to the Investor other |
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than provide a representation on the clear title of their respective Put Option Shares and due authority and capacity to hold and Transfer its Put Option Shares. At such closing, all of the parties to the transaction shall execute such additional documents as may be necessary or appropriate to effect the sale of the Put Option Shares to the Investor, or any Affiliate of the Investor, as the case may be. Any stamp duty or transfer taxes or fees payable on the transfer of the Put Option Shares shall be borne and paid by the Investor. |
12.7 | The Parties agree and acknowledge that the Investor, which shall discharge its obligation to pay the Put Option Consideration only by way of cash, may, subject to no prejudice being caused in any manner to the rights of the Continuing Shareholders under Clause 12, choose to fund this cash obligation to ensure payment at the Put Option Completion Date, by means of an equity offering of the listed shares of American Tower Corporation. |
12.8 | The Company shall, on the Put Option Completion Date, register the Transfer of the Put Option Shares in favour of the Investor or its Affiliate only upon the following documents being presented to it: |
12.8.1 | Share certificates evidencing the title to the Put Option Shares; and |
12.8.2 | Duly executed, stamped and valid instruments of Transfer. |
12.9 | If any provision contained in this Clause 12 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Clause 12, but this Clause 12 shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the Parties that if any of the provisions contained in this Clause 12 is held to be not permitted by applicable Law, or to any extent invalid, Parties shall seek, in good faith, to give effect to the commercial intent of the Parties within the parameters of applicable Law. Each of the Parties acknowledges that the other Parties would be irreparably harmed by any breach of this Clause 12 and that there would be no adequate remedy at Law or in damages to compensate the other Parties for any such breach, and agrees that the other Parties shall be entitled to injunctive relief requiring specific performance by each of them under this Clause 12, and hereby consents to the entry thereof. |
13. | MACQUARIE PUT/CALL OPTION & IDFC EXIT |
13.1 | The Parties agree that, at any time during the Macquarie Put Period, MSIIPL and SMIT shall have the right to require the Investor to, and the Investor shall be obliged to (either itself or through its Affiliates), purchase the entire (and not less than the entire) Shareholding of MSIIPL and SMIT in the Company ( Macquarie Put Option ), at the Per Share Fair Market Value, by a issuing a Put Option Exercise Notice. Clauses 12.4 to 12.9 shall apply mutatis mutandis to the Macquarie Put Option. |
13.2 |
The Parties agree that, at any time during a period commencing on April 1, 2020 and ending on March 31, 2021, the Investor shall have the right to require MSIIPL and SMIT, and MSIIPL and SMIT shall be obliged, to sell the entire (and not less than the entire) Shareholding of MSIIPL and SMIT in the Company to the Investor or its Affiliates |
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( Macquarie Call Option ), at the Per Share Fair Market Value, by a issuing a Call Option Exercise Notice. Clauses 14.2 to 14.6 shall apply mutatis mutandis to the Macquarie Call Option.
13.3 | IDFC Accelerated Put |
The Parties agree that if at any time prior to the actual transfer of shares by IDFCPE III to the Investor (including during the period after exercise of a Put Option by IDFCPE III but prior to the final settlement of such Put Option), either MSIIPL or SMIT transfer the Shares held by them to the Investor the Investor shall within 3 (three) Business Days issue a written notice ( IDFC Exit Notice ) to IDFCPE III intimating it of the proposed Transfer of MSIIPLs and SMITs Shareholding to the Investor. IDFCPE III shall be entitled to, notwithstanding anything contained in the agreement/ arrangement that may be entered into between the Investor and IDFCPE III in relation to the Put Option of IDFCPE III, within fifteen (15) Business Days of receipt of the IDFC Exit Notice, by issuing a written notice to require the Investor to, and the Investor shall be obliged to, purchase the entire Shareholding of IDFCPE III on the same terms and conditions (including the per Share price) as applicable to MSIIPL and SMIT (also a Accelerated Put Option ). The Parties further agree that the purchase of Shares by the Investor from IDFCPE III pursuant to this Clause 13.3 shall be on the same terms and conditions as the purchase of Shares by the Investor from MSIIPL and SMIT pursuant to this Clause 13.1 above and the completion of the Transfer of IDFCPE IIIs Shareholding to the Investor shall occur simultaneously with the completion of the Transfer of MSIIPLs and SMITs Shareholding to the Investor .
14. | CALL OPTION |
14.1 | The Parties agree that: |
(a) | at any time during the First Call Period or the Second Call Period, the Investor shall have the right to require TTSL and TSL to sell all, but not less than all, of such Shareholders Shareholding to the Investor or its Affiliates; and |
(b) | at any time during the First Call Period or the Second Call Period, the Investor shall have the right to require IDFCPE III to sell all, but not less than all, of its Shareholding to the Investor or its Affiliates; |
(each, a Call Option ), at a per Share price equal to the Call Option Price, by a notice in writing (each, a Call Option Exercise Notice ).
Provided that if any of TTSL, TSL or IDFCPE III have exercised the Put Option in accordance with Clause 12, and such Put Option cannot be completed due to any restrictions under applicable Law, the Investor shall be obliged to immediately exercise its Call Option and ensure that it purchases the Shareholding of TTSL, TSL or IDFCPEII (as the case may be) in accordance with this Clause 14 and applicable Law.
14.2 |
Each Call Option Exercise Notice sent by the Investor to a Shareholder (a Call Option Seller ) shall specify: (i) the Shares with respect to which the Call Option is exercised |
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(the Call Option Shares ); (ii) the Call Option Price; and (iii) the date for completion of the sale and purchase of the Call Option Shares (the Call Option Completion Date ), which shall (except if any regulatory approvals are required for such completion) be no more than thirty (30) Business Days and no fewer than fourteen (14) Business Days from the date of delivery of the Call Option Exercise Notice. |
14.3 | A Call Option Exercise Notice served under this Clause 14 shall constitute a legally binding contract between the Investor and the Call Option Seller, for the sale and purchase of the Call Option Shares, free from any Encumbrance and with all rights attached thereto. |
14.4 | The closing of any purchase of the Call Option Shares shall be held at the registered office of the Company on the Call Option Completion Date or at such other place as the parties to the transaction may agree in writing. The Call Option Consideration shall become due and payable on the Call Option Completion Date (subject to any extension to the extent necessary to obtain any required government or third party approvals that are required with respect to the transfer of the Call Option Shares; provided , however , that all of the parties to the transaction shall use their commercially reasonable efforts to obtain such approvals in a timely manner) and the Investor shall pay such Call Option Consideration as and when it becomes due and the Call Option Seller shall deliver any certificates representing the Call Option Shares, accompanied by duly executed share transfer forms in favour of the Investor in case of physical shares, and deliver instruction slips for the transfer of Shares to its depository participant in case of dematerialised shares. At such closing, all of the parties to the transaction shall execute such additional documents as may be necessary or appropriate to effect the sale of the Call Option Shares to the Investor or its Affiliates. Any stamp duty or transfer taxes or fees payable on the transfer of the Call Option Shares shall be borne and paid by the Investor. |
14.5 | The Company shall, on the Call Option Completion Date, register the Transfer of the Call Option Shares in favour of the Investor or its Affiliates only upon the following documents being presented to it: |
14.5.1 | Share certificates evidencing the title to the Call Option Shares; and |
14.5.2 | Duly executed, stamped and valid instruments of Transfer. |
14.6 | The Investor shall be responsible for obtaining all corporate and statutory approvals as required for consummating the Call Option except in such instances where such approval is required by Law required to be obtained by the Call Option Seller. |
15. | EXIT OPTION - QUALIFIED IPO |
15 .1 | Qualified IPO |
15.1.1 |
In the event the Investor fails to honour a Put Option, Macquarie Put Option or COC Put Option exercised by any of TTSL, TSL, MSIIPL, SMIT or IDFCPE III, and such failure is not immediately rectified by American Tower Corporation under the Shareholders Agreement Put Obligation Performance Guarantee, TTSL |
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and TSL or any of MSIIPL, SMIT or IDFCPE III shall be entitled to cause the Investor and the Company to, and the Investor and the Company shall be obligated to, immediately undertake a Qualified IPO of the Company. The Qualified IPO shall be conducted and completed such that: |
(a) | the Company shall bear and pay all expenses incurred in connection with a Qualified IPO on account of the Investor, including but not limited to all registration, filing and qualification fees, and printers, legal and accounting fees and disbursements, and the Investor shall be liable to immediately reimburse the Company for all such expenses incurred. Further, in the event any of the Continuing Shareholders are required to pay any amounts, or incur any expenses, in relation to the Qualified IPO, due to applicable Law or any reason whatsoever, the Investor or the Company shall reimburse the Continuing Shareholders for all such expenses incurred/ payments made in full; |
(b) | all of the Equity Shares of the Company are duly listed and approved for trading on a Recognized Stock Exchange; |
(c) | in connection with a Qualified IPO, each of TTSL and TSL and MSIIPL, SMIT and IDFCPE III shall be entitled to offer up to its entire Shareholding, first in priority over the Shareholding of the Investor, but in proportion of their Shareholding as between themselves that is excluding the Investors Shareholding, for sale as part of the offer for sale component of the Qualified IPO; |
(d) | if required by TTSL and TSL and MSIIPL, SMIT and IDFCPE III, the Investor shall offer such number of its Shares in the Qualified IPO as may be required to undertake a Qualified IPO. |
15.1.2 |
To the extent permissible under applicable Laws, the Investor undertakes and agrees that none of TTSL and TSL or MSIIPL, SMIT and IDFCPE III shall be named or deemed as a promoter of the Company in the prospectus or any other documents related to a public offering or otherwise and nor shall any declaration be made to this effect. None of the obligations of the promoters shall be applicable to TTSL and TSL or MSIIPL, SMIT and IDFCPE III and TTSL and TSL and MSIIPL, SMIT and IDFCPE III shall not be required to offer or make available their Shares for the purposes of any mandatory lock-in as applicable to promoters under the SEBI Regulations. In the event any body or regulatory authority takes a view or draws an inference that any of TTSL and TSL or MSIIPL, SMIT and IDFCPE III is a promoter, the Investor shall cooperate to make such representations and make full disclosures to such body or authority as may be required to dispel or correct such inference or view. If any of TTSL and TSL or MSIIPL, SMIT and IDFCPE III is treated as a promoter pursuant to any applicable Law and any minimum percentage of promoter Shareholding in the Company is required to be locked-in, the Investor shall offer or make available such number of Equity Shares held by it which would be sufficient to satisfy the |
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aforesaid minimum lock-in requirement. Further, all such obligations relating to a promoter shall be satisfied and met solely by the Investor. |
15.1.3 | The Company and the Investor undertake to: (i) ensure compliance with all applicable Laws in relation to any Qualified IPO; and (ii) obtain all necessary consents and approvals required for a Qualified IPO. |
15.1.4 | In the event that the per Share price received by each of TTSL, TSL, MSIIPL, SMIT and IDFCPE III for the Shares sold by such Parties through the Qualified IPO is less than the Put Option Price, then the Investor shall pay to such Party an amount equal to such shortfall in respect of each Share sold by such Party in the Qualified IPO. |
15.2 | Drag Right and Trade Sale |
15.2.1 | In the event the Investor fails to honour a Put Option, Macquarie Put Option or a COC Put Option exercised by any of TTSL, TSL, MSIIPL, SMIT or IDFCPE III, and such failure is not timely rectified by ATII or American Tower Corporation under the Shareholders Agreement Put Obligation Performance Guarantees, then TTSL and TSL shall be entitled to, in their sole discretion, exercise any or all of the rights set out below: |
(a) | Drag Along : TTSL and/ or TSL shall be entitled to negotiate a sale of any or all Securities of the Company to an unrelated Third Party as TTSL and/ or TSL may deem fit, at a price negotiated by TTSL and/ or TSL with such Third Party (the Drag Price ). TTSL and/ or TSL may require by notice in writing (the Drag Notice ): |
(i) | the Investor (or its Affiliates) to sell up to its entire Shareholding to such Third Party at the Drag Price; and/or |
(ii) | each of MSIIPL, SMIT and IDFCPE III (or its respective Affiliates) to sell its entire Shareholding to such Third Party at the Drag Price; |
The Transfer of Shares and the payment of the Drag Price under this Clause 15.2.1(a) shall occur simultaneously and within a period of sixty (60) Business Days from the date of the Drag Notice, in accordance with Clause11.9. The issuance of a Drag Notice shall constitute a binding obligation of the Investor and the MSIIPL, SMIT or IDFCPE III, as the case may be, to Transfer its Shares to the Third Party. In the event a Drag Notice is issued, the Parties undertake that they shall perform all necessary actions, including passing appropriate resolutions as may be required in accordance with applicable Law, in order to facilitate the Transfer of Shares to the Third Party. The parties to the transaction shall complete the sale and purchase of the offered Shares as per Clause 11.9 above.
(b) |
Trade Sale : TTSL and/ or TSL shall be entitled to negotiate a sale of the Business of the Company in favour of any Third Party as TTSL and/ or |
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TSL may deem fit, at a price negotiated by TTSL and/or TSL with such Third Party. Promptly, upon finalisation of the sale of the Business, TTSL and/or TSL shall provide a notice in writing to the Shareholders of the Company containing the detail of the Third Party, the price of sale of the Business, and the time period within which the sale is proposed to be completed. The Parties undertake that they shall perform all necessary actions, including passing appropriate resolutions as may be required in accordance with applicable Law, in order to facilitate the sale of the Business by the Company to the Third Party. |
15.2.2 | Notwithstanding anything contained in Clause 15.2.1 above, in the event of any sale of Shares proposed to be undertaken under Clause 15.2.1, TTSL and/ or TSL shall inform MSIIPL, SMIT and IDFCPE III of the negotiation of the sale by a notice in writing specifying the name of the Third Party and the Drag Price (the Negotiation Notice ). Upon receipt of the Negotiation Notice, each of MSIIPL, SMIT and IDFCPE III shall have the right to require TTSL and TSL to procure the Third Party to purchase any Securities held by MSIIPL, SMIT or IDFCPE III, as the case may be, on the same commercial terms and conditions offered to TTSL and TSL (the Default Tag Right ). All other provisions of Clause 11.7 above shall apply mutatis mutandis to the Default Tag Right and the Negotiation Notice shall be deemed to constitute a Tag Along Offer Notice under Clause 11.7. In the event a Drag Notice is given by TTSL and/ or TSL to MSIIPL, SMIT and IDFCPE III, the rights of MSIIPL, SMIT or IDFCPE III under this Clause 15.2.2 shall fall away. |
15.2.3 | In the event that the per Share price received by each of TTSL, TSL, MSIIPL, SMIT and IDFCPE III for the Shares sold by such Parties upon the exercise of the drag along right under Clause 15.2.1, or the per Share price attributable to TTSL, TSL, MSIIPL, SMIT and IDFCPE III pursuant to a sale of the Business of the Company under Clause 15.2.2, is less than the Put Option Price, then the Investor shall pay to such Party an amount equal to such shortfall. |
16. | FINANCING |
16.1 | Except to the extent required pursuant to this Agreement, including under Clause 10, no Shareholder shall be obliged to provide guarantees or security or other financial support for any Indebtedness, unless agreed otherwise in writing. |
16.2 | No Shareholder shall be obliged to provide any capital to the Company by way of subscription for further Shares, or by way of loans or subscription for loan stock or any other form of shareholder debt. |
16.3 |
The Shareholders acknowledge that the Company may require further finance to fund its projected cash requirements (including as set out in the Annual Business Plan) and agree that the Company may borrow, additional sums from third parties on the most favourable terms available as to interest, repayment and security compatible with its needs, at all times in accordance with Clause 6, including with respect to Affirmative Vote Matters, |
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but except where required by applicable Law shall not allow any prospective lender the right to participate in the Share Capital or the share capital of the Investor or otherwise in the Business as a condition or term of any loan or advance. |
17. | NON-COMPETE AND NON-SOLICITATION |
17.1 | Each of the Parties agrees that, in consideration of the furtherance of trade, goodwill and Business of the Company, it shall neither directly nor through a subsidiary or any other Person Controlled by it, employ or solicit, or receive or accept the performance of services in the Territory by any current employee of the Company or any former employee of the Company that has left his or her employment with the Company for less than one (1) year. For the avoidance of doubt, such restrictions shall not apply to any current or former employees of the Company that apply for jobs or other positions with any Party or its subsidiaries or any other Person Controlled by it (a) suo moto , without being approached by such Party, its subsidiaries or Person Controlled by it (as the case may be), or (b) in response to a generic advertisement that is not specifically addressed to such employees. |
17.2 | The Investor agrees that, except with respect to the Company in the normal course of business, in consideration of the furtherance of trade, goodwill and Business of the Company: |
17.2.1 | for so long as either TTSL or TSL (or any of their Affiliates other than TOF) are Shareholders, it shall neither directly nor indirectly through a subsidiary or Affiliate or any other Person Controlled by it, engage in, assist or provide any advisory services to, either directly or indirectly, as a principal or for its own account or solely or jointly with others, or as stockholders in any corporation or joint stock association, any communications business in the Territory that is similar to the communications business of TTSL, or its Affiliates, as it exists on the Effective Date; |
17.2.2 | for so long as either TTSL or TSL (or any of their Affiliates other than TOF) are Shareholders, any equity issuance, sale, transfer or other disposition of any Shares by the Company or the Investor, whether voluntarily or involuntarily, directly or indirectly, in a single transaction or a series of related transactions, to any communications business in the Territory that is similar to the communications business of TTSL as it exists on the Effective Date, shall require TTSLs prior consent, which consent may not be unreasonably withheld or delayed; and |
17.2.3 | during the term of this Agreement, it shall neither directly nor indirectly through a subsidiary or Affiliate or any other Person Controlled by it, engage in, assist or provide any advisory services to, either directly or indirectly, as a principal or for its own account or solely or jointly with others, or as stockholders in any corporation or joint stock association, any business in the Territory that is similar to the Business, other than through the Company. |
17.3 |
The Investor and the Company agree that, for so long as either TTSL, TSL or their |
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Affiliates (other than TOF) are Shareholders, in consideration of the furtherance of trade, goodwill and Business of the Company, each of the Investor and the Company shall neither directly nor indirectly through a subsidiary or Affiliate or any other Person Controlled by it, engage in or provide any advisory services to, either directly or indirectly, as a principal or for its own account or solely or jointly with others, or as stockholders in any corporation or joint stock association, the communications business (other than backhaul, DAS and WiFi) in the Territory that is similar to the communications business of TTSL and/or any of the Affiliates of TTSL as it exists on the Effective Date. |
17.4 | TTSL, agrees that, for so long as TTSL, TSL or their Affiliates (other than TOF) is a Shareholder, in consideration of the furtherance of trade, goodwill and Business of the Company, it shall, and shall ensure that Tata Teleservices (Maharashtra) Limited shall, neither directly nor through a subsidiary or any other Person Controlled by it, engage in, assist or provide any advisory services to, either directly or indirectly, as a principal or for its own account or solely or jointly with others, or as stockholders in any corporation or joint stock association, any owning, operation or development of wireless and broadcast passive infrastructure business (excluding all businesses and activities (other than the business of leasing out towers to third parties) being carried out as on the Effective Date such as IBS & DAS, wireline and passive infrastructure for non BTS related installations such as core network and major transmission aggregation POPs) in the Territory that is similar to the tower leasing or passive infrastructure business of the Company as it exists on the Effective Date. Provided further that notwithstanding anything contained in this Clause 17.4, any towers owned & operated by TTSL or TTML existing as on the Effective Date shall not be covered by and shall be excluded from the applicability of the provisions of this Clause 17.4. |
17.5 | The Parties agree that the restriction in Clause 17 shall not be applicable to (i) either of the Company or TTSL (or their respective Affiliates) undertaking projects relating to backhaul, in building solutions, Wi-Fi, active BTS/antenna sharing or other related activities after due consultation with each other; (ii) any investment by a Person with the primary objective of making financial gains and without strategic rights, provided further that, Clause 17 shall continue to apply to such Person if such Person has the right to appoint, and appoints, a director on the board of directors of a Competitor. |
17.6 |
If any provision contained in this Clause 17 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Clause 17, but this Clause 17 shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the Parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Clause 17 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such |
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applicable Law. Each of the Parties acknowledges that the other Parties would be irreparably harmed by any breach of this Clause 17 and that there would be no adequate remedy at Law or in damages to compensate the other Parties for any such breach, and agrees that the other Parties shall be entitled to injunctive relief requiring specific performance by each of them under this Clause 17, and hereby consents to the entry thereof. |
17.7 | The Parties agree that the existing activities of the Investor or (or its Affiliates) shall be excluded from the applicability of Clause 17 until the date of completion of the Combination, in accordance with and subject to the Implementation Agreement. |
17.8 | Nothing contained in this Clause 17 shall limit any (x) Allowed Transaction, or (y) the Restructuring. |
18. | TERMINATION |
18.1 | This Agreement shall, unless otherwise stated, terminate as regards to a Party (other than the Company) if that Party ceases to hold any Shares. |
18.2 | This Agreement shall terminate if no Person other than a single Shareholder of the Company remains as a Party or if all the Parties mutually agree in writing to terminate this Agreement. |
18.3 | The termination of this Agreement or of any provision hereof shall not prejudice any rights that have accrued prior to such termination. |
18.4 | Notwithstanding any other provision of this Agreement, the provisions of Clause 1 (Definitions and Interpretation), Clause 18 (Termination), Clause 19 (Costs and Expenses), Clause 20 (Confidentiality), Clause 22.3 (Notices), Clause 22.8 (Announcements) and Clause 23 (Governing Law and Arbitration) shall survive the termination of this Agreement. |
19. | COSTS AND EXPENSES |
Save as otherwise provided in this Agreement, each of the Parties shall pay its own costs, charges and expenses (including taxes and fees of its investment bankers and legal and other advisors) incurred in connection with negotiating, preparing and implementing this Agreement and the transactions and other documents contemplated by it. All stamp duties in relation to and for the consummation of the transactions contemplated in this Agreement shall be paid by the Company.
20. | CONFIDENTIALITY |
20.1 | Confidentiality obligation |
Subject to the provisions of Clause 20.2 below, each Party shall keep, and shall ensure that its Affiliates and their respective Representatives keep, all information and other materials passing between it (the Receiving Party ) and the other Party and/or the
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Company in relation to the transaction contemplated by this Agreement and also in relation to the Company (including all information concerning the business transactions and the financial arrangements relating to the Company and/ or the subsidiaries) (the Confidential Information ), confidential, and shall not without the prior written consent of the other Party, divulge the Confidential Information to any other Person or use the Confidential Information other than for carrying out the purposes of this Agreement.
20.2 | Exceptions |
The provisions of Clause 20.1 shall not apply to:
20.2.1 | a disclosure of Confidential Information that is or becomes generally available to the public other than as a result of disclosure by or at the direction of a Party or any of its representatives in violation of this Agreement; |
20.2.2 | a disclosure by a Party to its representatives, provided such representatives are bound by similar confidentiality obligations; |
20.2.3 | a disclosure to the extent required under the rules of any recognised stock exchange or by applicable Laws or governmental regulations or generally accepted accounting principles applicable to any Party or judicial or regulatory process or in connection with any judicial process regarding any legal action, suit or proceeding arising out of or relating to this Agreement; and |
20.2.4 | upon any Shareholder entering into negotiations with any Person with a view to Transferring any Shares to a Third Party, information in respect of the Company that is reasonably necessary to permit such Person to evaluate the business of the Company may be provided to such Person, provided that (a) such Person has executed a confidentiality agreement; and (b) the Board is satisfied (acting reasonably) with the terms and conditions of such duly executed confidentiality agreement. |
21. | CHARTER DOCUMENTS |
The Charter Documents shall be amended in conformity with this Agreement. In the event of inconsistency between the provisions of this Agreement and the Articles of Association, the provisions of this Agreement shall, to the extent permitted by Law, prevail. The Parties shall exercise their voting rights attached to their Shares to alter the Charter Documents in a manner consistent with this Agreement.
22. | MISCELLANEOUS |
22.1 | Specific Performance |
The Parties agree that damages may not be an adequate remedy for any breach of this Agreement, and the Parties shall be entitled to an injunction, restraining order, right for recovery, suit for specific performance or such other equitable relief as a court of
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competent jurisdiction may deem necessary or appropriate to restrain the other Parties hereto from committing any violation or enforce the performance of the covenants, representations and obligations contained in this Agreement. These injunctive remedies are cumulative and are in addition to any other rights and remedies the Parties may have at Law or in equity, including a right to damages.
22.2 | Counterparts |
This Agreement may be executed in any number of separate counterparts, each of which is an original but all of which taken together shall constitute one and the same instrument. The delivery of signed counterparts by facsimile transmission or electronic mail in portable document format (.pdf) shall be as effective as signing and delivering the counterpart in person.
22.3 | Notices |
22.3.1 | Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and signed by or on behalf of the Party giving it. Such notice shall be served by sending it by facsimile to the number set forth below or delivering by hand, mail, electronic mail or courier to the address set forth below. In each case it shall be marked for the attention of the relevant Party set forth below. Any notice so served shall be deemed to have been duly given: (a) in case of delivery by hand, when hand delivered to the other Party; or (b) when sent by facsimile, upon transmission and receipt of confirmation; or (c) when sent by mail, where three (3) Business Days have elapsed after deposit in the mail with certified mail receipt requested postage prepaid; or (d) when delivered by courier on the second (2 nd ) Business Day after deposit with an overnight delivery service, postage prepaid, with next Business Day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider; or (e) for electronic mail notification with return receipt requested, upon the obtaining of a valid return receipt from the recipient. Each Person making a communication hereunder by facsimile shall promptly confirm by telephone or regular mail or electronic mail to the Person to whom such communication by facsimile was addressed, each communication made by it by facsimile pursuant hereto but the absence of such confirmation by telephone or regular mail or electronic mail shall not affect the validity of any such facsimile communication. |
If to the Company
Attention | : | Company Secretary | ||
Address | : | D-2, 5th Floor, Southern Park, Saket Place, Saket, New Delhi 110017, India | ||
Telephone | : | 0124 66344703 | ||
: | geetapuri.seth@viomnetworks.com |
If to TTSL
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Attention | : | A&E Block, Voltas premises, T B Kadam Marg, Chinchpokli, Mumbai 400 033 | ||
Address | : | Bhaskar Chandran, President Legal, Regulatory & Company Secretary | ||
Telephone | : | +91 22 6667 1155 | ||
Facsimile | : | 91 22 6610 6175 | ||
: | bhaskar.chandran@tatatel.co.in |
If to TSL
Attention | : | Mr. F N Subedar | ||
Address | : | Bombay House, 24, Homi Mody Street, Fort, Mumbai 400001 | ||
Telephone | : | +91 22 66657147 | ||
Facsimile | : | +91 22 66658080 | ||
: | fnsubedar@tata.com |
If to IDFCPE III
Attention | : | Managing Partner & Chief Investment Officer and Chief Financial Officer | ||
Address | : |
IDFC Private Equity Fund III c/o IDFC Alternatives Limited 7th floor, One IndiaBulls Centre Tower 1C, Jupiter Mills Compound, 841, Senapati Bapat Marg, Elphinstone Road, Mumbai 400013 |
||
Telephone | : | +91 22 42222000 | ||
Facsimile | : | +91 22 42222166 | ||
: |
satish.mandhana@idfc.com - Managing Partner and Chief Investment Officer manish.jindal@idfc.com - Chief Financial Officer |
If to MSIIPL
Attention | : | Mr. David Luboff | ||
Address | : | 10 Marina Boulevard, #17-01 Tower 2, Marina Bay Financial Centre Singapore 018983 | ||
Telephone | : | +65-66010014 | ||
Facsimile | : | +65 6601 0653 | ||
: | David.luboff@macquarie.com |
If to SMIT
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Attention | : | Mr. Suresh Goyal | ||
Address | : | 92, 2 North Avenue, Maker Maxity, Bandra Kurla Complex, Bandra (E), Mumbai - 400051, India | ||
Telephone | : | +91-22-67204011 | ||
Facsimile | : | +91-22-67204302 | ||
: | Suresh.Goyal@macquarie.com |
If to the Investor
Attention | : | ATC Asia Pacific Pte. Ltd. | ||
Address | : |
One Raffles Quay North Tower, Level 25 Singapore 048583 |
||
Telephone | : | 65 66225351 / 66225352 |
With Copies to
Attention | : | General Counsel | ||
Address | : |
American Tower International, Inc. 116 Huntington Ave., 11 th Floor, Boston, MA 02116 |
||
Telephone | : | 617-375-7500 | ||
Facsimile | : | 617-375-7575 |
Attention | : | Clifford Chance LLP | ||
Address | : |
31 West 52 nd Street New York, NY 10019 |
||
Telephone | : | 212-878-8000 | ||
Facsimile | : | +1 212 878 8375 |
22.3.2 | Any Party may, from time to time, change its address for the purpose of notices to that Party by giving a notice to the other Parties specifying a new address, but no such notice will be deemed to have been given until it is actually received by the other Parties. |
22.4 | Relationship |
Each Party hereto is an independent party and nothing contained in this Agreement shall be construed to be inconsistent with this relationship or status. Nothing in this Agreement shall, in any way, be construed to constitute any Party as the agent, employee or representative of any other Party. None of the provisions of this Agreement shall be deemed to constitute a partnership between the Parties and no Party shall have any authority to bind any other Party otherwise than under this Agreement or shall be deemed to be the agent of the other in any way.
22.5 | Waivers, Rights and Remedies |
The Party that is entitled to the benefit thereof may, subject to applicable Law, waive any
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term or condition of this Agreement or any breach of or default by any other Party in performing any of the provisions of this Agreement at any time. Such waiver must be in writing and must be executed by an authorized officer of such Party. A waiver on one occasion will not be deemed to be a continuing waiver of the same or any other breach or non-fulfilment on a future occasion and such waiver shall not prevent the waiving party from subsequently enforcing any of the provisions of this Agreement not waived or from acting on any subsequent breach of or default by any other Party under any of the provisions of this Agreement. All remedies, either under this Agreement, or by applicable Law or otherwise afforded, will be cumulative and not alternative.
22.6 | Threshold Rights |
Notwithstanding anything to the contrary contained in this Agreement or the Articles of Association of the Company, in case of any dilution of the Shareholding of the Tatas, MSIIPL or SMIT in the Company pursuant to any of the following:
(a) | failure to exercise a Pre-emptive Right under Clause 10 of this Agreement upon primary issuance of securities by the Company or on the issuance of any Excluded Securities; |
(b) | the exercise of the Put Option under Clause 12, wherein Tatas have offered up to the maximum Put Option Shares which may be offered by them in a Put Period but continue to remain a Shareholder in the Company; |
(c) | pursuant to the exercise of the Tag Along Right by TTSL, TSL, IDFCPE III, MSIIPL and/or SMIT under Clause 11.7 pursuant to Clause 11.1.2; |
(d) | as a result of a Clawback Subscription; or |
(e) | as a result of the Combination, |
the rights, entitlements and obligations of the Tatas, MSIIPL or SMIT (as the case may be) that are linked to a minimum Shareholding threshold shall continue to apply as if no such dilution has occurred and any reference in this Agreement or the Articles of Association to such minimum Shareholding threshold shall be deemed to be proportionately adjusted to take into account and negate the effect and impact of such dilution.
22.7 | Authorisation |
The Parties represent and covenant that the persons signing this Agreement on behalf of the Parties have the authority to so sign and execute this Agreement on behalf of the Parties for whom they are signing.
22.8 | Announcements |
The Parties shall not make, and shall not permit any of their respective Affiliates, directors, employees, officers, legal, financial and professional advisors or bankers to
-69-
make, any public announcement about the subject matter of this Agreement or regarding any of the Companys Business and operating plans from time to time, whether in the form of a press release or otherwise, without first consulting with each other and obtaining the other Parties written consent, save as required to satisfy any requirement (whether or not having the force of Law) of a stock exchange on which the shares of the disclosing Party or subsidiary or affiliate or holding company of the disclosing Party are traded, or of the securities laws, rules or regulations or generally accepted accounting principles applicable to the disclosing Party or subsidiary or affiliate or holding company of the disclosing Party in any jurisdiction in which its shares are traded, or of any relevant governmental or regulatory body. In the event that disclosure is required, the other Parties shall be given a reasonable opportunity to review and comment on any such required disclosure, which comment shall not be unreasonably delayed or conditioned.
22.9 | Assignment |
The Parties shall not assign their rights under this Agreement, except as provided specifically herein. In the event the entire Shareholding is Transferred by any Shareholder, subject to Clause 11 above, the Shareholder shall be entitled to assign its respective rights available under the this Agreement. This restriction shall not apply in case of an assignment to a Partys Affiliate. It is however clarified that, the right of MSIIPL and SMIT to appoint a Director to the Board shall not be assignable unless the transferee by itself, or together with not more than one (1) other transferee, acquires the entire aggregate Shareholding of MSIIPL and SMIT. Provided, however, that neither this Agreement nor the rights of a Party hereunder shall be assignable in case of a merger, amalgamation, reconstruction or any other form of corporate restructuring of such Party with any other person/entity, except with the consent of the other Parties (which shall not be unreasonably withheld). Notwithstanding anything contained in this Agreement, TTSL and TSL shall be entitled to assign its respective rights and obligations under this Agreement to any of their Affiliates including, without limitation, TOF or members of the Tata Group, in connection with or pursuant to a transfer of Shares to such Affiliates or members of the Tata Group.
22.10 | Entire Agreement |
22.10.1 | This Agreement and the documents and agreements referred to in it set out the entire agreement and understanding between the Parties with respect to the subject matter of it. This Agreement supersedes any prior agreements or understandings between the Parties, which cease to have any further force or effect. |
22.10.2 |
On the Effective Date, all past agreements entered into (i) inter se between all or any part of the Shareholders listed in Schedule 1A and (ii) between the Shareholders listed in Schedule 1A and the Company, including the Existing Shareholders Agreement, shall stand terminated, provided that nothing in this Clause 22.10.2 shall apply to the Investment Agreement. Provided further that, subject to Clause 8, (a) no liability under such agreements shall pass or transfer to the Investor unless specified in the Definitive Agreements; and (b) any accrued |
-70-
obligations to the Company are discharged or provided for. |
22.11 | Further Assurance |
Subject to applicable law and the terms and conditions of this Agreement, the Parties will use their best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable Law to consummate the transactions contemplated herein and to give effect to the terms of this Agreement. The Parties agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other lawful actions as may be necessary or desirable in order to consummate or implement expeditiously such transactions contemplated hereby. Without prejudice to any other provision of this Agreement, the Parties agree that, in the event that it has or it is deemed to have provided its consent under any provision of this Agreement then it shall take, all actions and to do, or cause to be done, all things reasonably necessary or desirable under applicable law to give effect to the matter or item that it has consented to.
22.12 | Invalidity |
Each of the provisions of this Agreement is severable. If any such provision is held to be or becomes invalid or unenforceable in any respect under the law of any jurisdiction, the remainder of this Agreement and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. The invalid provision shall have no effect in that respect and the Parties shall use all reasonable efforts to replace it in that respect with a valid and enforceable substitute provision the effect of which shall be as close to its intended effect as possible.
22.13 | Variation |
No variation of this Agreement shall be valid unless it is in writing (which, for this purpose, does not include electronic mail) and signed by or on behalf of each of the Parties. The expression variation includes any variation, supplement, deletion, modification or replacement however effected.
23. | GOVERNING LAW AND ARBITRATION |
23.1 | This Agreement and the documents to be entered into pursuant to it, and any non-contractual obligations arising out of or in connection with the Agreement and such documents, shall be governed by and construed in accordance with the substantive Laws of India without giving effect to the principles of conflict of Laws thereunder. Notwithstanding the foregoing or any provision herein to the contrary, the Shareholders Agreement Put Obligation Performance Guarantee shall be shall be governed by and construed in accordance with the substantive Laws of the United States of America, without giving effect to the principles of conflict of Laws thereunder. |
-71-
23.2 | Any and all process may be served in any action or proceeding arising in connection with this Agreement by notice pursuant to Clause 22.3. The Parties hereby agree to waive all claims of error by reason of such service and that such service, if delivered, sent or mailed, shall constitute good, proper and sufficient service. Nothing herein shall affect the right of any Party to service process in any other manner permitted by Law or to commence legal proceedings or otherwise proceed against the other in any other jurisdiction to enforce judgments or rulings of the below mentioned arbitration process. |
24. | DISPUTE RESOLUTION |
24.1 | Any and all disputes or differences between the Parties arising out of or in connection with this Agreement or its performance shall, so far as it is possible, be settled amicably through consultation between the Parties. |
24.2 | If after thirty (30) Business Days of consultation, the disputing parties have failed to reach an amicable settlement on any or all disputes or differences arising out of or in connection with this Agreement or its performance, such disputes or differences shall be submitted to final and binding arbitration at the request of either of the disputing parties upon written notice to that effect to the other. |
24.3 | Such arbitration shall be under and on the terms of the Arbitration Rules of the Singapore International Arbitration Centre and shall be held in Singapore. All proceedings of such arbitration shall be in the English language. |
24.4 | The arbitration panel shall consist of three (3) arbitrators, one (1) arbitrator to be appointed by each side to such dispute and the third arbitrator, who shall serve as chairman, to be appointed jointly by the other two (2) arbitrators. In the event that there are multiple disputing parties, all sides shall attempt to agree upon the appointments. |
24.5 | The arbitration panel shall have the power to order any interim or conservatory measures which it deems appropriate. |
24.6 | If multiple disputes arise out of or in connection with this Agreement or its performance then any or all such disputes may be determined in a single arbitration. |
24.7 | In the event that an arbitration under this Agreement or its performance has commenced and is still pending (the Pending Arbitration ), when any other arbitration is commenced under any of such documents, each of the parties hereby agrees that the arbitration panel in the Pending Arbitration shall have the power to order consolidation of the subsequently commenced arbitration with the Pending Arbitration (together, the Consolidated Arbitration ), where the request for consolidation is made prior to (a) the exchange of the final written pleadings (excluding post-hearing briefs, or equivalent), or (b) the commencement of the final hearing on the merits in the Pending Arbitration (if any), whichever is the later, and the arbitration panel in the Pending Arbitration, in its absolute discretion, determines that: |
(a) | the arbitrations relate to substantially similar questions of law or of fact; |
-72-
(b) | none of the parties would be unduly prejudiced; and |
(c) | consolidation under these circumstances would not result in undue delay for any of the arbitrations. |
24.8 | The arbitration panel in the Consolidated Arbitration shall consist of three (3) arbitrators, one (1) arbitrator to be appointed by each side to such dispute and the third (3 rd ) arbitrator, who shall serve as chairman, to be appointed jointly by the other two (2) arbitrators. |
24.9 | The parties agree that upon consolidation, they will promptly dismiss any arbitration brought under this Agreement or its performance, the subject of which has been consolidated into a Consolidated Arbitration in accordance with this Clause 24. |
24.10 | Nothing shall preclude any Party from seeking interim or permanent equitable or injunctive relief, or both, provided that courts in Singapore shall be deemed to have non-exclusive jurisdiction in respect of all matters where interim relief is sought under this Agreement. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to pursue any remedy for monetary damages through the arbitration described in this Clause 24. |
25. | SUBSIDIARIES OF THE COMPANY |
25.1 | The Parties agree that the provisions of Clauses 4.1 to 4.6, 5, 6, 7 and 9 of this Agreement shall apply, mutatis mutandis , to each of the present and future subsidiaries of the Company. |
26. | TATA BRAND |
26.1 | The Parties acknowledge and agree that on and from the Effective Date, the Company shall not be identified as or referred to as a group company or Affiliate of TSL, nor shall TSL or TTSL be identified as a promoter or partner in the Company. |
26.2 | The Company and all the Shareholders, other than TTSL, TSL and its Affiliates, hereby acknowledge and agree that they shall not be entitled to use the brand Tata, or any trademarks, trade names, brand names or symbols belonging to or associated with TSL or its Affiliates on and from the Effective Date, except for identifying TSL or TTSL as a shareholder of the Company under applicable Law. |
26.3 | The Parties agree that the term Tata or any abbreviation thereof or similar term shall not be used while registering any trademarks, trade names, brand names or symbols of the Company. |
27. | NO CONFLICT OBLIGATIONS OF MIRA |
27.1 |
For so long as MSIIPL and SMIT are entitled to nominate a Director on the Board, then in the event MIRA acquires an ownership interest or makes an investment in a Competitor prior to March 31, 2021 and also acquires the contractual right to appoint one or more nominees of MIRA (or the entities Controlled by it) and such nominees are so |
-73-
appointed as a director on the board of directors of the Competitor or acquires any veto rights in such Competitor, MSIIPL and/or SMIT: |
27.1.1 | will inform the Investor and Board in writing of the same; |
27.1.2 | ensure that any nominee or director of MSIIPL or SMIT on the Board of the Company resigns with immediate effect; |
27.1.3 | shall have no right to appoint a Director on the Board for so long as a nominee of MIRA (or the entities Controlled by it) is a director on the board of directors of a Competitor or MIRA (or the entities Controlled by it) has any veto rights in a Competitor; and |
27.1.4 | shall not be entitled to exercise the Affirmative Vote Matters listed in items 13, 4, 5, 6, 8, 9, 11, 12, 13 and 18 of Part A in Schedule 2, which shall remain suspended until such time as a nominee of MIRA (or the entities Controlled by it) is a director on the board of directors of a Competitor or MIRA (or the entities Controlled by it) has any veto rights in a Competitor. |
27.2 | Notwithstanding anything in this Agreement: |
27.2.1 | this Clause 27 shall not apply to any investments made by MIRA in a Competitor on or after March 31, 2021; |
27.2.2 | the provisions of this Clause 27 shall cease to apply with immediate effect upon the occurrence of a Material ATC Breach. |
27.3 | All information relating to the Company, including but not limited to its business, finance, customers and operations, received by MSIIPL or SMIT or their nominee Director on the Board from the Company or from any other Person shall be kept confidential and shall not be used by any of MSIIPL, SMIT or their nominee Directors for any purposes other than for which such information has been provided to any of them, including specifically in the evaluation of any investment opportunities in any Competitor. |
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IN WITNESS WHEREOF THE COMPANY HAS CAUSED ITS COMMON SEAL TO BE AFFIXED HERETO AND THE OTHER PARTIES HERETO HAVE CAUSED THE SAME TO BE EXECUTED AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
For VIOM NETWORKS LIMITED | ||
Authorized Signatory | /s/ S YED S AFANI | |
Name: Syed Safani | ||
Title: CEO | ||
In the presence of: | ||
Authorized Signatory | /s/ S HIRISH M ANIAR | |
Name: Sirish Maniar | ||
Title: CFO | ||
In the presence of: |
Signature Page of the Shareholders Agreement
For TATA SONS LIMITED | ||
Authorized Signatory |
/s/ F.N. S UBEDAR |
|
Name: F.N. Subedar | ||
Title: | ||
In the presence of: |
Signature Page of the Shareholders Agreement
For TATA TELESERVICES LIMITED | ||
Authorized Signatory |
/s/ S RINATH N ARASIMHAN |
|
Name: Srinath Narasimhan | ||
Title: Managing Director | ||
In the presence of: |
Signature Page of the Shareholders Agreement
For IDFC PRIVATE EQUITY FUND III | ||
Authorized Signatory |
/s/ S ATISH M ANDHANA |
|
Name: Satish Mandhana | ||
Title: Managing Partner and CIO | ||
In the presence of: |
Signature Page of the Shareholders Agreement
For MACQUARIE SBI INFRASTRUCTURE INVESTMENTS PTE LIMITED | ||
Authorized Signatory |
/s/ D AVID L U B OFF |
|
Name: David LuBoff | ||
Title: Director | ||
In the presence of: |
/s/ V ERENA L IMS |
|
Name: Verena Lims |
Signature Page of the Shareholders Agreement
For SBI MACQUARIE INFRASTRUCTURE TRUST | ||
Authorized Signatory |
/s/ N ANDINI R ODRICKS |
|
Name: Nandini Rodricks | ||
Title: CEO | ||
In the presence of: |
/s/ R ICHARD A. L OWE |
|
Name: Richard A. Lowe |
Signature Page of the Shareholders Agreement
For ATC ASIA PACIFIC PTE. LTD. | ||
Authorized Signatory |
/s/ E DMUND D I S ANTO |
|
Name: Edmund DiSanto | ||
Title: Director | ||
In the presence of: |
Signature Page of the Shareholders Agreement
|
|
|
||||||||||||||||||
|
|
2011
|
|
2012
|
|
2013
|
|
2014
|
|
2015
|
||||||||||
Computation of Earnings:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Income from continuing operations before income taxes and income on equity method investments
|
|
$
|
506,895
|
|
|
$
|
701,294
|
|
|
$
|
541,749
|
|
|
$
|
865,704
|
|
|
$
|
829,962
|
|
Add:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest expense (1)
|
|
313,328
|
|
|
403,150
|
|
|
459,779
|
|
|
581,716
|
|
|
596,769
|
|
|||||
Operating leases
|
|
109,817
|
|
|
125,706
|
|
|
148,573
|
|
|
196,491
|
|
|
241,430
|
|
|||||
Amortization of interest capitalized
|
|
2,218
|
|
|
2,315
|
|
|
2,406
|
|
|
2,547
|
|
|
2,638
|
|
|||||
Earnings as adjusted
|
|
932,258
|
|
|
1,232,465
|
|
|
1,152,507
|
|
|
1,646,458
|
|
|
1,670,799
|
|
|||||
Computation of fixed charges and combined fixed charges and preferred stock dividends:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest expense (1)
|
|
313,328
|
|
|
403,150
|
|
|
459,779
|
|
|
581,716
|
|
|
596,769
|
|
|||||
Interest capitalized
|
|
2,096
|
|
|
1,926
|
|
|
1,817
|
|
|
2,822
|
|
|
1,831
|
|
|||||
Operating leases
|
|
109,817
|
|
|
125,706
|
|
|
148,573
|
|
|
196,491
|
|
|
241,430
|
|
|||||
Fixed charges
|
|
425,241
|
|
|
530,782
|
|
|
610,169
|
|
|
781,029
|
|
|
840,030
|
|
|||||
Dividends on preferred stock
|
|
—
|
|
|
—
|
|
|
—
|
|
|
23,888
|
|
|
90,163
|
|
|||||
Combined fixed charges and preferred stock dividends
|
|
425,241
|
|
|
530,782
|
|
|
610,169
|
|
|
804,917
|
|
|
930,193
|
|
|||||
Excess in earnings required to cover fixed charges
|
|
$
|
507,017
|
|
|
$
|
701,683
|
|
|
$
|
542,338
|
|
|
$
|
865,429
|
|
|
$
|
830,769
|
|
Ratio of earnings to fixed charges (2)
|
|
2.19
|
|
|
2.32
|
|
|
1.89
|
|
|
2.11
|
|
|
1.99
|
|
|||||
Excess in earnings required to cover combined fixed charges and preferred stock dividends
|
|
$
|
507,017
|
|
|
$
|
701,683
|
|
|
$
|
542,338
|
|
|
$
|
841,541
|
|
|
$
|
740,606
|
|
Ratio of earnings to combined fixed charges and preferred stock dividends
|
|
2.19
|
|
|
2.32
|
|
|
1.89
|
|
|
2.05
|
|
|
1.80
|
|
(1)
|
Interest expense includes amortization of deferred financing costs. Interest expense also includes an amount related to our capital lease with TV Azteca.
|
(2)
|
For the purposes of this calculation, “earnings” consists of income from continuing operations before income taxes and income on equity method investments, as well as fixed charges (excluding interest capitalized and amortization of interest capitalized). “Fixed charges” consists of interest expensed and capitalized, amortization of debt discounts, premiums and related issuance costs and the component of rental expense associated with operating leases believed by management to be representative of the interest factor thereon.
|
Subsidiary
|
|
Jurisdiction of
Incorporation or Organization
|
|
|
|
10 Presidential Way Associates, LLC
|
Delaware
|
|
ACC Tower Sub, LLC
|
Delaware
|
|
Adquisiciones y Proyectos Inalámbricos, S. de R. L. de C.V.
|
Mexico
|
|
Alternative Networking LLC
|
Florida
|
|
American Tower Asset Sub II, LLC
|
Delaware
|
|
American Tower Asset Sub, LLC
|
Delaware
|
|
American Tower Corporation de Mexico, S. de R.L. de C.V.
|
Mexico
|
|
American Tower Corporation
|
Delaware
|
|
American Tower Delaware Corporation
|
Delaware
|
|
American Tower Depositor Sub, LLC
|
Delaware
|
|
American Tower do Brasil - Cessão de Infraestruturas Ltda.
|
Brazil
|
|
American Tower Guarantor Sub, LLC
|
Delaware
|
|
American Tower Holding Sub, LLC
|
Delaware
|
|
American Tower Holding Sub II, LLC
|
Delaware
|
|
American Tower International Holding I LLC
|
Delaware
|
|
American Tower International Holding II LLC
|
Delaware
|
|
American Tower International, Inc.
|
Delaware
|
|
American Tower Investments LLC
|
California
|
|
American Tower LLC
|
Delaware
|
|
American Tower Management, LLC
|
Delaware
|
|
American Tower Mauritius
|
Republic of Mauritius
|
|
American Tower, L.P.
|
Delaware
|
|
American Towers LLC
|
Delaware
|
|
AT Netherlands C.V.
|
Netherlands
|
|
AT Netherlands Coöperatief U.A.
|
Netherlands
|
|
AT Sao Paulo C.V.
|
Netherlands
|
|
AT Sher Netherlands Coöperatief U.A.
|
Netherlands
|
|
AT South America C.V.
|
Netherlands
|
|
ATC Antennas Holding LLC
|
Delaware
|
|
ATC Antennas LLC
|
Delaware
|
|
ATC Asia Holding Company, LLC
|
Delaware
|
|
ATC Asia Pacific Pte. Ltd.
|
Singapore
|
|
ATC Backhaul LLC
|
Delaware
|
|
ATC Brazil Coöperatief U.A.
|
Netherlands
|
|
ATC Brazil Holding LLC
|
Delaware
|
|
ATC Brazil I LLC
|
Delaware
|
|
ATC Brazil II LLC
|
Delaware
|
|
ATC Chile Holding LLC
|
Delaware
|
|
ATC Colombia B.V.
|
Netherlands
|
|
ATC Colombia Holding I LLC
|
Delaware
|
|
ATC Colombia Holding LLC
|
Delaware
|
ATC Colombia I LLC
|
Delaware
|
|
ATC FL Towers, Inc.
|
Florida
|
|
ATC Germany Holdings GmbH
|
Germany
|
|
ATC Germany Operating 1 GmbH
|
Germany
|
|
ATC Germany Operating 2 GmbH
|
Germany
|
|
ATC Germany Services GmbH
|
Germany
|
|
ATC India Infrastructure Private Limited
|
India
|
|
ATC India Tower Corporation Private Limited
|
India
|
|
ATC Indoor DAS Holding LLC
|
Delaware
|
|
ATC Indoor DAS LLC
|
Delaware
|
|
ATC International Holding Corp.
|
Delaware
|
|
ATC IP LLC
|
Delaware
|
|
ATC Iris I LLC
|
Delaware
|
|
ATC Latin America S.A. de C.V., SOFOM, E.N.R.
|
Mexico
|
|
ATC Managed Sites Holding LLC
|
Delaware
|
|
ATC Managed Sites LLC
|
Delaware
|
|
ATC Marketing (Uganda) Limited
|
Uganda
|
|
ATC MexHold LLC
|
Delaware
|
|
ATC Mexico Holding LLC
|
Delaware
|
|
ATC Midwest, LLC
|
Delaware
|
|
ATC New Mexico LLC
|
Missouri
|
|
ATC Nigeria Coöperatief U.A.
|
Netherlands
|
|
ATC Nigeria C.V.
|
Netherlands
|
|
ATC Nigeria Holding LLC
|
Delaware
|
|
ATC Nigeria Holding II LLC
|
Delaware
|
|
ATC Nigeria Partners C.V.
|
Netherlands
|
|
ATC Nigeria Wireless Infrastructure Limited
|
Nigeria
|
|
ATC On Air + LLC
|
Delaware
|
|
ATC Operations LLC
|
Delaware
|
|
ATC Outdoor DAS, LLC
|
Delaware
|
|
ATC Peru Holding LLC
|
Delaware
|
|
ATC Sequoia LLC
|
Delaware
|
|
ATC Sitios de Chile S.A.
|
Chile
|
|
ATC Sitios de Colombia S.A.S.
|
Colombia
|
|
ATC Sitios del Peru S.R.L.
|
Peru
|
|
ATC Sitios Infraco S.A.S.
|
Colombia
|
|
ATC South Africa Investment Holdings (Proprietary) Limited (1)
|
South Africa
|
|
ATC South Africa Wireless Infrastructure (Pty) Ltd (2)
|
South Africa
|
|
ATC South America Holding LLC
|
Delaware
|
|
ATC South LLC
|
Delaware
|
|
ATC TEC LLC
|
Delaware
|
|
ATC Telecom Tower Corporation Private Limited
|
India
|
|
ATC Tower (Ghana) Limited (2)
|
Republic of Ghana
|
|
ATC Tower Company of India Private Limited
|
India
|
|
ATC Tower Services LLC
|
Delaware
|
|
ATC TRS I LLC
|
Delaware
|
ATC TRS II LLC
|
Delaware
|
|
ATC Uganda Limited (3)
|
Uganda
|
|
ATC Utah, Inc.
|
Delaware
|
|
ATC Watertown LLC
|
Delaware
|
|
ATS/PCS, LLC
|
Delaware
|
|
ATS-Needham LLC (4)
|
Massachusetts
|
|
B1 Ulysses Site Management LLC
|
Delaware
|
|
BR Towers SPE 1 S.A.
|
Brazil
|
|
California Tower, Inc.
|
Delaware
|
|
Cell Site NewCo I, LLC
|
Delaware
|
|
Cell Site NewCo II, LLC
|
Delaware
|
|
Cell Tower Lease Acquisition LLC
|
Delaware
|
|
Centennial Towers CR, S.R.L.
|
Costa Rica
|
|
Central States Tower Holdings, LLC
|
Delaware
|
|
CNC2 Associates, LLC
|
Delaware
|
|
Columbia Steel, Inc.
|
South Carolina
|
|
DCS NewCo, LLC
|
Delaware
|
|
DCS Tower Sub, LLC
|
Delaware
|
|
Germany Tower Interco B.V.
|
Netherlands
|
|
Ghana Tower InterCo B.V. (5)
|
Netherlands
|
|
Global Tower Assets II, LLC
|
Delaware
|
|
Global Tower Assets III, LLC
|
Delaware
|
|
Global Tower Assets IV, LLC
|
Delaware
|
|
Global Tower Assets, LLC
|
Delaware
|
|
Global Tower DAS, LLC
|
Delaware
|
|
Global Tower Holdings, LLC
|
Delaware
|
|
Global Tower Properties, LLC
|
Delaware
|
|
Global Tower Services, LLC
|
Delaware
|
|
Global Tower Sites I, LLC
|
Delaware
|
|
Global Tower, LLC
|
Delaware
|
|
GLP Cell Site A, LLC
|
Delaware
|
|
GLP Cell Site I, LLC
|
Delaware
|
|
GLP Cell Site II, LLC
|
Delaware
|
|
GLP Cell Site III, LLC
|
Delaware
|
|
GLP Cell Site IV, LLC
|
Delaware
|
|
GLP Guarantor Sub LLC
|
Delaware
|
|
GLP LLC
|
Delaware
|
|
Gondola Tower Holdings LLC
|
Delaware
|
|
GTP Acquisition Partners I, LLC
|
Delaware
|
|
GTP Acquisition Partners II, LLC
|
Delaware
|
|
GTP Acquisition Partners III, LLC
|
Delaware
|
|
GTP ANI Holdings, LLC
|
Delaware
|
|
GTP Cellular Sites, LLC
|
Delaware
|
|
GTP Costa Rica Finance, LLC
|
Delaware
|
|
GTP Costa Rica HoldCo LLC CR S.R.L.
|
Costa Rica
|
|
GTP Costa Rica Holding CR, S.R.L.
|
Costa Rica
|
GTP Costa Rica, LLC
|
Delaware
|
|
GTP Highpointe Holdings, LLC
|
Delaware
|
|
GTP Holdings, LLC
|
Delaware
|
|
GTP Infrastructure I, LLC
|
Delaware
|
|
GTP Infrastructure II, LLC
|
Delaware
|
|
GTP Infrastructure III, LLC
|
Delaware
|
|
GTP Investments LLC
|
Delaware
|
|
GTP LATAM Holdco S.L.
|
Spain
|
|
GTP LATAM Holdings B.V.
|
Netherlands
|
|
GTP LatAm Holdings Coöperatieve U.A.
|
Netherlands
|
|
GTP Operations CR, S.R.L.
|
Costa Rica
|
|
GTP Sites Hold Co., LLC
|
Delaware
|
|
GTP South Acquisitions II, LLC
|
Delaware
|
|
GTP Structures I, LLC
|
Delaware
|
|
GTP Structures II, LLC
|
Delaware
|
|
GTP Structures III, LLC
|
Delaware
|
|
GTP Structures Issuer, LLC
|
Delaware
|
|
GTP Structures IV, LLC
|
Delaware
|
|
GTP Structures V, LLC
|
Delaware
|
|
GTP Torres CR, S.R.L.
|
Costa Rica
|
|
GTP Towers Costa Rica Holdcorp S.R.L.
|
Costa Rica
|
|
GTP Towers I, LLC
|
Delaware
|
|
GTP Towers II, LLC
|
Delaware
|
|
GTP Towers III, LLC
|
Delaware
|
|
GTP Towers IV, LLC
|
Delaware
|
|
GTP Towers IX, LLC
|
Delaware
|
|
GTP Towers V, LLC
|
Delaware
|
|
GTP Towers VII, LLC
|
Delaware
|
|
GTP Towers VIII, LLC
|
Delaware
|
|
GTP TRS I LLC
|
Delaware
|
|
GTPI HoldCo, LLC
|
Delaware
|
|
Haysville Towers, LLC (6)
|
Kansas
|
|
HighPointe Management, LLC
|
Delaware
|
|
Iron & Steel Co., Inc.
|
Delaware
|
|
Lap do Brasil Empreendimentos Imobiliários Ltda
|
Brazil
|
|
LAP Inmobiliaria Limitada
|
Chile
|
|
MATC Digital, S. de R.L. de C.V.
|
Mexico
|
|
MATC Infraestructura, S. de R.L. de C.V.
|
Mexico
|
|
MATC Servicios, S. de R.L. de C.V.
|
Mexico
|
|
McCoy Developers Private Limited
|
India
|
|
MHB Tower Rentals of America, LLC
|
Mississippi
|
|
Mid-Atlantic Tower Management, LLC
|
Delaware
|
|
National Tower, LLC
|
Massachusetts
|
|
New Loma Communications, Inc.
|
California
|
|
New Towers LLC
|
Delaware
|
|
Oakville Telecom Towers, LLC
|
Delaware
|
Oakville Tower Holdings, LLC
|
Delaware
|
|
PCS Structures Towers, LLC
|
Delaware
|
|
Red Spires Asset Sub, LLC
|
Delaware
|
|
Richland Dallas Tower, LLC
|
Delaware
|
|
Richland Towers - Atlanta, LLC
|
Delaware
|
|
Richland Towers - Boston, LLC
|
Delaware
|
|
Richland Towers - Charleston, LLC
|
Delaware
|
|
Richland Towers - Columbus, LLC
|
Delaware
|
|
Richland Towers - Conyers, LLC
|
Delaware
|
|
Richland Towers - Dallas FM, LLC
|
Delaware
|
|
Richland Towers - Denver North, LLC
|
Delaware
|
|
Richland Towers - Denver, LLC (DE)
|
Delaware
|
|
Richland Towers - East Tampa, LLC
|
Delaware
|
|
Richland Towers - Indianapolis, LLC
|
Delaware
|
|
Richland Towers - Kansas City, LLC
|
Delaware
|
|
Richland Towers - Knoxville, LLC
|
Delaware
|
|
Richland Towers - Miami, LLC
|
Delaware
|
|
Richland Towers - Missouri City, LLC
|
Delaware
|
|
Richland Towers - Nashville, LLC
|
Delaware
|
|
Richland Towers - NYC, LLC
|
Delaware
|
|
Richland Towers - Oklahoma City, LLC
|
Delaware
|
|
Richland Towers - Orlando, LLC
|
Delaware
|
|
Richland Towers - Quad Cities, LLC
|
Delaware
|
|
Richland Towers - Sacramento, LLC
|
Delaware
|
|
Richland Towers - San Antonio, LLC
|
Delaware
|
|
Richland Towers - San Diego, LLC
|
Delaware
|
|
Richland Towers - Washington DC, LLC
|
Delaware
|
|
Richland Towers Funding, LLC
|
Delaware
|
|
Richland Towers Holdco, LLC
|
Delaware
|
|
Richland Towers Management Boston, LLC
|
Delaware
|
|
Richland Towers Management Dallas, LLC
|
Delaware
|
|
Richland Towers Management Detroit, LLC
|
Delaware
|
|
Richland Towers Management Flint, LLC
|
Delaware
|
|
Richland Towers Management Funding, LLC
|
Delaware
|
|
Richland Towers Management Holdco, LLC
|
Delaware
|
|
Richland Towers Management Miami, LLC
|
Delaware
|
|
Richland Towers Management Mt. Wilson, LLC
|
Delaware
|
|
Richland Towers Management Norfolk, LLC
|
Delaware
|
|
Richland Towers Management Parkview, LLC
|
Delaware
|
|
Richland Towers Management Phoenix, LLC
|
Delaware
|
|
Richland Towers Management Pittsburgh, LLC
|
Delaware
|
|
Richland Towers Management Portsmouth, LLC
|
Delaware
|
|
Richland Towers Management Seattle, LLC
|
Delaware
|
|
Richland Towers Management Tampa, LLC
|
Delaware
|
|
Richland Towers Management, LLC
|
Delaware
|
|
Richland Towers, LLC
|
Delaware
|
RTM Boston Funding, LLC
|
Delaware
|
|
RTM Boston Holdco, LLC
|
Delaware
|
|
RTM Flint Funding, LLC
|
Delaware
|
|
RTM Flint Holdco, LLC
|
Delaware
|
|
RTM Parkview Funding, LLC
|
Delaware
|
|
RTM Parkview Holdco, LLC
|
Delaware
|
|
RTM Phoenix Funding, LLC
|
Delaware
|
|
RTM Phoenix Holdco, LLC
|
Delaware
|
|
RTM Seattle Funding, LLC
|
Delaware
|
|
RTM Seattle Holdco, LLC
|
Delaware
|
|
RTM Tower Holdings, LLC
|
Delaware
|
|
Shreveport Tower Company
|
Louisiana
|
|
SpectraSite Communications, LLC
|
Delaware
|
|
SpectraSite, LLC
|
Delaware
|
|
T7 Ulysses Site Management LLC
|
Delaware
|
|
T8 Ulysses Site Management LLC
|
Delaware
|
|
TeleCom Towers, L.L.C.
|
Delaware
|
|
Tower Management, Inc. (7)
|
Indiana
|
|
Tower Marketco Ghana Limited
|
Republic of Ghana
|
|
Towers of America, L.L.L.P.
|
Delaware
|
|
Transcend Infrastructure Holdings Pte. Ltd.
|
Singapore
|
|
Transcend Infrastructure Private Limited
|
India
|
|
Uganda Tower Interco B.V. (5)
|
Netherlands
|
|
Ulysses Asset Sub I, LLC
|
Delaware
|
|
Ulysses Asset Sub II, LLC
|
Delaware
|
|
Ulysses Ground Lease Funding, LLC
|
Delaware
|
|
Ulysses Ground Lease Holdco, LLC
|
Delaware
|
|
UniSite, LLC
|
Delaware
|
|
UniSite/Omnipoint FL Tower Venture, LLC (8)
|
Delaware
|
|
UniSite/Omnipoint NE Tower Venture, LLC (8)
|
Delaware
|
|
UniSite/Omnipoint PA Tower Venture, LLC (8)
|
Delaware
|
|
Verus Management One, LLC
|
Delaware
|
|
VM Ulysses Site Management LLC
|
Delaware
|
|
Western Pacific Funding, LLC
|
Delaware
|
|
Western Pacific Holdco, LLC
|
Delaware
|
|
Western Pacific Towers, LLC
|
Delaware
|
|
Wireless Resource Group, LLC
|
Oklahoma
|
|
WRG Holdings, LLC
|
Oklahoma
|
(1)
|
74.99% owned by AT Netherlands Coöperatief U.A.
|
(2)
|
Wholly owned by a majority owned subsidiary.
|
(3)
|
Majority interest owned by a majority owned subsidiary.
|
(4)
|
45.24% owned by American Tower, L.P. and 34.76% owned by American Towers LLC.
|
(5)
|
51% owned by AT Sher Netherlands Coöperatief U.A.
|
(6)
|
66.667% owned by TeleCom Towers, L.L.C.
|
(7)
|
50% owned by Global Tower Assets IV, LLC.
|
(8)
|
95% owned by UniSite, LLC.
|
1.
|
I have reviewed this annual report on Form 10-K of American Tower Corporation;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: February 26, 2016
|
|
|
|
By:
|
|
/
S
/ J
AMES
D. T
AICLET
, J
R
.
|
|
|
|
|
|
|
James D. Taiclet, Jr.
|
|
|
|
|
|
|
Chairman, President and Chief Executive Officer
|
1.
|
I have reviewed this annual report on Form 10-K of American Tower Corporation;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
|
|
|
|
|||
Date: February 26, 2016
|
|
|
|
By:
|
|
/
S
/ T
HOMAS
A. B
ARTLETT
|
|
|
|
|
|
|
Thomas A. Bartlett
|
|
|
|
|
|
|
Executive Vice President and Chief Financial Officer
|
|
|
|
|
|
|
|
Date: February 26, 2016
|
|
|
|
By:
|
|
/
S
/ J
AMES
D. T
AICLET
, J
R
.
|
|
|
|
|
|
|
James D. Taiclet, Jr.
|
|
|
|
|
|
|
Chairman, President and Chief Executive Officer
|
|
|
|
|
|||
Date: February 26, 2016
|
|
|
|
By:
|
|
/
S
/ T
HOMAS
A. B
ARTLETT
|
|
|
|
|
|
|
Thomas A. Bartlett
|
|
|
|
|
|
|
Executive Vice President and Chief Financial Officer
|