Exhibit 1.1
8,000,000 Shares
SBA Communications
Corporation
Class A Common
Stock
UNDERWRITING
AGREEMENT
May 6, 2005
Lehman Brothers Inc.
745 Seventh Avenue, Third
Floor
New York, New York 10019
Ladies and Gentlemen:
SBA Communications Corporation, a
Florida corporation (the “ Company ”) proposes
to sell to Lehman Brothers Inc. (the “ Underwriter
”) 8,000,000 shares (the “ Stock ”) of the
Company’s Class A Common Stock, par value $0.01 per share
(the “ Common Stock ”). This is to confirm the
agreement concerning the purchase of the Stock from the Company by
the Underwriter.
1. Representations, Warranties
and Agreements of the Company. The Company represents, warrants
and agrees as follows:
(a) A registration statement on Form
S-3 with respect to the Stock has (i) been prepared by the Company
in conformity with the requirements of the Securities Act of 1933,
as amended (the “ Securities Act ”), and the
rules and regulations (the “ Rules and Regulations
”) of the Securities and Exchange Commission (the “
Commission ”) thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective
under the Securities Act. Copies of such registration statement and
each of the amendments thereto have been delivered by the Company
to you. As used in this Agreement, “ Effective Time
” means the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; “ Effective
Date ” means the date of the Effective Time; “
Preliminary Prospectus Supplement ” means each
preliminary prospectus supplement amending or supplementing the
Base Prospectus (as defined below) after the registration statement
became effective under the Securities Act but containing a
“Subject to Completion” legend comparable to that
contained in paragraph 10 of Item 501 under Regulation S-K of the
Rules and Regulations; “Preliminary Prospectus” means
the Base Prospectus and each Preliminary Prospectus
Supplement”; “Prospectus Supplement” means the
final prospectus supplement amending or supplementing the Base
Prospectus in the form filed after the Effective Time pursuant to
Rule 424 of the Rules and Regulations and first used in connection
with sales of the Stock; “ Prospectus ” means
the Prospectus Supplement and the accompanying base prospectus
included in the Registration Statement (the “Base
Prospectus”) in the form first used
in connection with sales of the Stock; and
“ Registration Statement ” means the effective
registration statement on Form S-3 (Registration Statement No.
333-41308), as amended at the Effective Time, including all
documents incorporated by reference therein at such time and all
information contained in the Prospectus. Reference made herein to
any Preliminary Prospectus Supplement, Preliminary Prospectus, Base
Prospectus or to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of
such Preliminary Prospectus or the Prospectus, as the case may be,
and any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), after
the date of such Preliminary Prospectus or the Prospectus, as the
case may be, and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference
to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the
Registration Statement. If the Company has filed an abbreviated
registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the “
Rule 462 Registration Statement ”), then any reference
herein to the term “ Registration Statement ”
shall be deemed to include such Rule 462 Registration Statement.
The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus or Prospectus, or suspending
the effectiveness of the Registration Statement, and no proceedings
for such purpose have been instituted or, to the knowledge of the
Company, threatened by the Commission.
(b) As of the applicable effective
date of the Registration Statement and any amendment thereto, the
Registration Statement and any amendment thereto complied in all
material respects with the Securities Act and the Rules and
Regulations, and did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading; and as of the applicable filing date of the Prospectus
and any amendment or supplement thereto and as of the Delivery Date
(as defined below) the Prospectus did not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Underwriter specifically for
inclusion therein.
(c) The documents incorporated by
reference in the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and none of
such documents contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with Commission will
conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the
Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The Company is duly incorporated
and validly existing and in good standing under the laws of Florida
with all requisite corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, and none of the
subsidiaries (as defined in Rule 405 under the Securities Act)
(“ Subsidiaries ”) of the Company other than SBA
Telecommunications, Inc. (“ Telecommunications
”), SBA Senior Finance Inc., SBA Properties, Inc., SBA
Network Services, Inc. and SBA Towers, Inc. (collectively, the
“ Significant Subsidiaries ”) is a
“significant subsidiary” as such term is defined in
Rule 405 under the Securities Act.
(e) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable
and conform in all material respects to the description thereof
contained in the Prospectus.
(f) Each of the Subsidiaries of the
Company is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its organization, with all
requisite power and authority to own, lease and operate its
properties and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure to be duly registered or qualified would not have caused a
material adverse effect on the general affairs, management,
consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and the
Subsidiaries taken as a whole (a “ Material Adverse
Effect ”). The Company and the Subsidiaries, as a whole,
conduct their business as described in the Prospectus. All of the
issued shares of capital stock of each Subsidiary of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, are owned directly or indirectly by the Company,
and (except as set forth in the Prospectus with respect to shares
subject to liens under or pursuant to the Amended and Restated
Credit Agreement, dated as of January 30, 2004, as further amended
on November 12, 2004, by and among SBA Senior Finance, Inc., the
several lenders from time to time parties thereto and Lehman
Brothers Inc. and Deutsche Bank Securities Inc., as joint lead
advisors, arrangers and bookrunners, as amended, supplemented or
otherwise modified from time to time, the “ Senior Credit
Agreement ”) free and clear of all liens, encumbrances,
equities, claims or adverse interests.
(g) The shares of the Stock to be
issued and sold by the Company to the Underwriter hereunder have
been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein will be duly and
validly issued, fully paid and non-assessable; and the Stock will
conform to the description thereof contained in the
Prospectus.
(h) This Agreement has been duly and
validly authorized, executed and delivered by the
Company.
(i) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(j) The execution, delivery and
performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby will not conflict with, or
result in a breach or violation of any of the terms or provisions
of, or (including with the giving of notice or the lapse of time or
both) constitute a default under (i) any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
properties or assets of the Company or any of its Subsidiaries is
subject, (ii) the provisions of the charter, by-laws or other
organizational documents of the Company or any of its Subsidiaries
or (iii) any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company
or any of its Subsidiaries or any of their properties or assets,
except in the cases of clause (i) or (iii), such breaches,
violations or defaults that in the aggregate would not have a
Material Adverse Effect, and no consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby except for the registration
of the Stock under the Securities Act, such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Stock
by the Underwriter and the listing of the Stock on the Nasdaq
National Market System as may be required.
(k) Except (i) as described in the
Prospectus and (ii) for the registration rights granted pursuant to
the Registration Rights Agreement dated as of December 14, 2004,
among the Company, Lehman Brothers Inc., Deutsche Bank Securities
Inc., Friedman, Billings, Ramsey & Co., Inc., Raymond James
& Associates, Inc., RBC Capital Markets Corporation and TD
Securities (USA) LLC, there are no contracts, agreements or
understandings between the Company or any of its Subsidiaries, on
the one hand, and any person, on the other hand, granting such
person the right to require the Company or any of its Subsidiaries
to file a registration statement under the Securities Act with
respect to any securities of the Company and its Subsidiaries owned
or to be owned by such person or to require the Company or any of
its Subsidiaries to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company or any of its Subsidiaries under the
Securities Act.
(l) The Company has not sold or
issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant
to Rule 144A under, or Regulations D or S of, the Securities Act
other than shares issued pursuant to employee benefit plans,
qualified stock options plans or other employee compensation plans
or pursuant to outstanding options, rights or warrants, shares
issued pursuant to the registration statements on Form S-4 (File
Nos. 333-71460 and 333-46730) and shares of common stock issued
pursuant to Section 3(a)(9) of the Securities Act in connection
with debt-for-equity transactions.
(m) Neither the Company nor any of
its Subsidiaries has sustained, since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock or long-term debt of the
Company on a consolidated basis or any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the general affairs, management, consolidated
financial position, stockholders’ equity, results of
operations, business or prospects of the Company and its
Subsidiaries taken as a whole, in each case otherwise than as set
forth or contemplated in the Prospectus.
(n) The consolidated historical
financial statements, together with the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus comply as to form in all material respects with
the requirements of Regulation S-X under the Securities Act
applicable to registration statements on Form S-3 under the
Securities Act. Such historical financial statements fairly present
the financial position of the Company at the respective dates
indicated and the results of operations and cash flows for the
respective periods indicated, in each case in accordance with
generally accepted accounting principles (“ GAAP
”) consistently applied throughout such periods. The other
financial information and data filed as part of the Registration
Statement or included or incorporated by reference in the
Prospectus are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and
the books and records of the Company.
(o) Ernst & Young LLP, who have
certified certain financial statements of the Company, whose report
appears in the Form 10-K incorporated by reference into the
Prospectus and who have delivered the initial letter referred to in
Section 7(g) hereof, are independent public accountants as required
by the Securities Act and the Rules and Regulations and were
independent accountants under the guidelines of the AICPA as
required by the Securities Act and the Rules and Regulations during
the periods covered by the financial statements on which they
reported incorporated by reference into the Prospectus.
(p) The Company and each of its
Subsidiaries have good and marketable title in fee simple to or a
leasehold interest in all real property and good and valid title to
all personal property owned by them, in each case free and clear of
all liens, encumbrances, defects, equities or claims except for
liens contemplated by the Senior Credit Agreement or as are
otherwise described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its Subsidiaries; all assets held under lease by the
Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made and
proposed to be made of such assets by the Company and its
Subsidiaries taken as a whole; and the present and contemplated use
of the assets owned or leased by the Company or any of its
Subsidiaries for the operation of towers is in compliance in all
material respects with all applicable zoning ordinances and
regulations and other laws and regulations where failure so to
comply would result, or create reasonable risk of resulting, in a
Material Adverse Effect.
(q) The Company and each of its
Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in
similar industries.
(r) The Company and each of its
Subsidiaries own or possess adequate rights to use all patents,
patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights,
inventions, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures) and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any such
rights of others, in each case except as could not reasonably be
expected to have a Material Adverse Effect.
(s) There are no legal or
governmental proceedings pending or, to the knowledge of the
Company or its Subsidiaries, threatened against the Company or any
of its Subsidiaries or to which any of their respective properties
is subject, that are not disclosed in the Prospectus and which are
reasonably likely to have a Material Adverse Effect or to
materially affect the issuance of the Stock.
(t) The conditions for use of Form
S-3, as set forth in the General Instructions thereto, have been
satisfied.
(u) There are no contracts or other
documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been described
in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the
Rules and Regulations.
(v) No material relationship, direct
or indirect, exists between or among the Company or
Telecommunications on the one hand, and the directors, officers,
stockholders, affiliates, customers or suppliers of the Company or
Telecommunications on the other hand, which is required to be
described in the Prospectus which is not so described.
(w) Neither the Company nor any of
its Subsidiaries is involved in any strike or labor dispute with
any group of employees, and, to the knowledge of the Company or any
of its Subsidiaries, no such action or dispute is threatened, which
might be expected to have a Material Adverse Effect.
(x) The Company is in compliance in
all material respects with all presently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”); no “reportable event”
(as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in
ERISA) for which the Company would have any
liability; the Company has not incurred nor expects to incur
liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any “pension plan” or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the “ Code ”); each “pension
plan” for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss
of such qualification.
(y) Each of the Company and its
Subsidiaries has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon except where such failure would
not have a Material Adverse Effect, and no tax deficiency has been
determined adversely to the Company or any of its Subsidiaries nor
does the Company or any of its Subsidiaries have any knowledge of
any tax deficiency which, if determined adversely to the Company,
would have a Material Adverse Effect.
(z) Since the date of the latest
audited consolidated financial statements of the Company
incorporated by reference in the Prospectus, neither the Company
nor any of its Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction,
in each case not in the ordinary course of business, and that is
material to the Company and its Subsidiaries, taken as a whole, and
there has been no Material Adverse Effect, nor to the
Company’s knowledge, after due inquiry, any development or
event involving a prospective Material Adverse Effect and, except
as disclosed in or contemplated by the Prospectus, since the date
of the latest audited consolidated financial statements of the
Company incorporated by reference in the Prospectus, there has been
no (i) dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock, (ii) issuance of
securities, other than the securities issued pursuant to the
Company’s 1999 Equity Participation Plan, the Company’s
2001 Equity Participation Plan, the Company’s 1999 Employee
Stock Purchase Plan, shares of common stock of the Company issued
pursuant to the registration statements on Form S-4 (File Nos.
333-71460 and 333-46730) and shares of common stock of the Company
issued pursuant to Section 3(a)(9) of the Securities Act in
connection with debt-for-equity transactions, or (iii) material
increase in short-term or long-term debt of the Company on a
consolidated basis.
(aa) The Company and its
Subsidiaries have a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary
to permit preparation of its consolidated financial statements in
conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the
reported accountability for assets is compared with existing assets
at reasonable intervals.
(bb) The Company has established and
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-14 under the Exchange Act), which (i) are
designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to
the Company’s principal executive officer and its principal
financial officer or
persons performing similar functions by others
within the Company, particularly during the periods in which the
periodic reports required under the Exchange Act are being
prepared; (ii) have been evaluated for effectiveness as of December
31, 2004; and (iii) are effective in all material respects to
perform the functions for which they were established except as
described in the Form 10-K incorporated by reference in the
Prospectus.
(cc) Based on the evaluation of its
disclosure controls and procedures, the Company is not aware of (i)
any significant deficiency in the design or operation of internal
controls which could adversely affect the Company’s ability
to record, process, summarize and report financial data or any
material weaknesses in internal controls, except as described in
the Form 10-K incorporated by reference in the Prospectus or (ii)
any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company’s
internal controls.
(dd) Since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses, except as described in the
Form 10-K incorporated by reference in the Prospectus.
(ee) There is and has been no
failure on the part of the Company and any of its directors or
officers, in their capacities as such, to comply with any
applicable provision of the U.S. Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith, other
than such failures relating to the Company’s assessment and
evaluation of its application of lease accounting and leasehold
depreciation practices and the resulting conclusion: (i) that the
Company’s disclosure controls and procedures were not
effective as of December 31, 2004; (ii) that a material weakness in
the Company’s internal control over financial reporting
existed as of December 31, 2004; and (iii) that the Company’s
internal control over financial reporting was not effective as of
December 31, 2004.
(ff) Neither the Company nor any of
the Significant Subsidiaries (i) is in violation of its charter or
by-laws, (ii) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or assets
is subject or (iii) is in violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries or
any of their properties or assets, other than, a default or
violation described in clauses (ii) and (iii) which is not
reasonably likely to have a Material Adverse Effect.
(gg) Neither the Company nor any of
its Subsidiaries, nor any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or
any of its Subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(hh) There has been no storage,
disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, hazardous wastes or
hazardous substances by the Company or any of its Subsidiaries (or,
to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously
owned or leased by the Company or any of its Subsidiaries in
violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably
likely to have, singularly or in the aggregate with all such
violations and remedial actions, a Material Adverse Effect; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into
the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its
Subsidiaries or with respect to which the Company or any of its
Subsidiaries has knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would
not have or would not be reasonably likely to have, singularly or
in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a Material
Adverse Effect; and the terms “hazardous wastes,”
“toxic wastes,” “hazardous substances” and
“medical wastes” shall have the meanings specified in
any applicable local, state, Federal and foreign laws or
regulations with respect to environmental protection.
(ii) Neither the Company nor any
Subsidiary is currently or will be, upon the sale of the Stock in
accordance herewith and the application of the net proceeds
therefrom as described in the Prospectus under the caption
“Use of Proceeds,” an “investment company”
within the meaning of and subject to regulation under the
Investment Company Act of 1940, as amended (the “ 1940
Act ”).
(jj) The Company and its
Subsidiaries (i) have duly and timely filed all material reports,
registrations and other material filings, if any, which are
re
