Exhibit 10.80
[Bank Name and Address]
April 20, 2009
To: SBA Communications
Corporation
5900 Broken Sound Parkway NW
Boca Raton, Florida 33487
Attention: Tom Hunt
Telephone No.:
Facsimile No.:
Re: Issuer
Warrant Transaction
The purpose of this letter agreement
(this “ Confirmation ”) is to confirm the terms
and conditions of the Warrants issued by SBA Communications
Corporation (the “ Company ”) to [Bank Name]
(“ Bank ”) on the Trade Date specified below
(the “ Transaction ”). This letter agreement
constitutes a “Confirmation” as referred to in the ISDA
Master Agreement specified below. This Confirmation shall replace
any previous agreements and serve as the final documentation for
the Transaction.
The definitions and provisions
contained in the 1996 ISDA Equity Derivatives Definitions (the
“ Equity Definitions ”), as published by the
International Swaps and Derivatives Association, Inc. (“
ISDA ”), are incorporated into this Confirmation. In
the event of any inconsistency between the Equity Definitions and
this Confirmation, this Confirmation shall govern. The Transaction
shall be deemed to be a Share Option Transaction within the meaning
set forth in the Equity Definitions.
Each party is hereby advised, and
each such party acknowledges, that the other party has engaged in,
or refrained from engaging in, substantial financial transactions
and has taken other material actions in reliance upon the
parties’ entry into the Transaction to which this
Confirmation relates on the terms and conditions set forth
below.
1. This Confirmation evidences a
complete and binding agreement between Bank and the Company as to
the terms of the Transaction to which this Confirmation relates.
This Confirmation shall supplement, form a part of, and be subject
to an agreement in the form of the 2002 ISDA Master Agreement (the
“Agreement ”) as if Bank and the Company had
executed an agreement in such form (but without any Schedule except
for the election of United States dollars as the Termination
Currency) on the Trade Date. In the event of any inconsistency
between provisions of that Agreement and this Confirmation, this
Confirmation will prevail for the purpose of the Transaction to
which this Confirmation relates. The parties hereby agree that no
Transaction other than the Transaction to which this Confirmation
relates shall be governed by the Agreement.
2. The terms of the particular
Transaction to which this Confirmation relates are as
follows:
General Terms:
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Trade
Date:
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April 20,
2009
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Warrants:
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Equity call
warrants, each giving the holder the right to purchase one Share at
the Strike Price, subject to the Settlement Terms set forth below.
For the purposes of the Equity Definitions, each reference to a
Warrant herein shall be deemed to be a reference to a Call
Option.
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Warrant
Style:
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American
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Buyer:
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Bank
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Seller:
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The
Company
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Shares:
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The Class A
common stock of Company, par value USD 0.01 per Share (Exchange
symbol “ SBAC ”)
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1
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Number of
Warrants:
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[ Barclays Bank
PLC – 6,665,571; Citibank, N.A. - 4,443,714; Deutsche Bank AG
London – 1,851,548; JPMorgan Chase Bank, National Association
– 1,110,929; Wachovia Capital Markets LLC – 740,619]
subject to adjustments provided herein
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Daily Number of
Warrants:
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For any
Expiration Date, as provided in Schedule A to this Confirmation,
subject to adjustment pursuant to the provisos to “Expiration
Date(s)”; provided that upon the exercise of any Warrants on
a date preceding the first Expiration Date, the Daily Number of
Warrants for each Expiration Date (other than the final Expiration
Date) shall be reduced by a number of Warrants equal to the
quotient obtained by dividing the total number of Warrants so
exercised by 60 (rounded down to the nearest whole number) (such
quotient, the “ Daily Reduction Amount ”) and
the Daily Number of Warrants for the final Expiration Date shall be
reduced by a number of Warrants equal to the excess of the total
number of Warrants so exercised over the sum of the Daily Reduction
Amount for all preceding Expiration Dates.
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Warrant
Entitlement:
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One Share per
Warrant
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Number of
Shares:
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The product of
the Number of Warrants and the Warrant Entitlement.
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Multiple
Exercise:
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Applicable
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Minimum Number
of Warrants:
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1
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Maximum Number
of Warrants:
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All Warrants
remaining unexercised as of the remaining Exercise
Date(s).
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Integral
Multiple:
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1
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Strike
Price:
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USD
44.6400
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Premium:
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[Barclays Bank
PLC - USD 40,178,025.00; Citibank, N.A. - USD 26,785,350.00;
Deutsche Bank AG London – USD 10,839,375.00; JPMorgan Chase
Bank, National Association – USD 6,503,625.00; Wachovia
Capital Markets LLC – USD 4,335,750.00]
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Premium Payment
Date:
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April 24,
2009
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Exchange:
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The NASDAQ
Global Select Market
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Related
Exchange(s):
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The principal
exchange(s) for options contracts or futures contracts, if any,
with respect to the Shares.
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Exercise and Valuation:
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Expiration
Time:
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The Valuation
Time
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Expiration
Date(s):
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Each Exchange
Business Day during the period from and including the First
Expiration Date to and including the 60 th Exchange Business Day following the First
Expiration Date shall be an “Expiration Date” for a
number of Warrants equal to the Daily Number of Warrants on such
date; provided that, notwithstanding the foregoing and
anything to the contrary in the Equity Definitions, if a Market
Disruption Event occurs on any Expiration Date (including the First
Expiration Date), the Calculation Agent shall make adjustments, if
applicable, to the Daily Number of Warrants or shall reduce such
Daily Number of Warrants to zero for which such day shall be an
Expiration Date and shall designate an Exchange Business Day or a
number of Exchange Business Days as the Expiration Date(s) for the
remaining Daily Number of Warrants or a portion thereof for the
originally scheduled Expiration Date; and provided further
that if such Expiration Date has not
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2
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occurred
pursuant to this clause as of the eighth Exchange Business Day
following the last scheduled Expiration Date under the Transaction,
the Calculation Agent shall have the right to declare such Exchange
Business Day to be the final Expiration Date and the Calculation
Agent shall determine its good faith estimate of the fair market
value for the Shares as of the Valuation Time on that eighth
Exchange Business Day or on any subsequent Exchange Business Day,
as the Calculation Agent shall determine using commercially
reasonable means.
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First
Expiration Date:
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January 2,
2015, subject to Market Disruption Event below.
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Consequences of
a Disrupted Day:
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Notwithstanding
the foregoing and anything to the contrary in the Equity
Definitions and not limiting anything set forth under
“Expiration Date(s)” above, if any Exercise Date
occurring prior to the First Expiration Date is a Disrupted Day,
the Calculation Agent may reduce the number of Warrants (including
reducing the number to zero) for which such day shall be an
Exercise Date.
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Automatic
Exercise:
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Applicable; and
means that, unless all Warrants have been previously exercised
hereunder, a number of Warrants for each Expiration Date equal to
the Daily Number of Warrants (as adjusted pursuant to the terms
hereof) for such Expiration Date will be deemed to be automatically
exercised.
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Market
Disruption Event:
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Section
4.3(a)(ii) is hereby amended by adding after the words “or
Share Basket Transaction” in the first line thereof a phrase
“a failure by the Exchange or Related Exchange to open for
trading during its regular trading session or” and replacing
the phrase “during the one-half hour period that ends at the
relevant Valuation Time” with the phrase “at any time
during the regular trading session on the Exchange or any Related
Exchange, without regard to after hours or any other trading
outside of the regular trading session hours”.
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Valuation applicable to each
Warrant:
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Valuation
Time:
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At the close of
trading of the regular trading session on the Exchange;
provided that if the principal trading session is extended,
the Calculation Agent shall determine the Valuation Time in its
reasonable discretion.
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Valuation
Date:
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Each Exercise
Date. Notwithstanding anything to the contrary in the Equity
Definitions, if there is a Market Disruption Event on any Valuation
Date, then the Calculation Agent shall determine the Settlement
Price for such Valuation Date on the basis of its good faith
estimate of the market value for the relevant Shares on such
Valuation Date.
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Settlement Terms applicable to the
Transaction:
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Method of
Settlement:
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Net Share
Settlement; provided that, with respect to any Warrants
exercised on the Expiration Dates (and only such Warrants), Cash
Settlement shall apply if the Company validly elects Cash
Settlement pursuant to the provisions of “Cash Settlement
Election” below.
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Net Share
Settlement:
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On the relevant
Settlement Date, Company shall deliver to Bank, the Share Delivery
Quantity of Shares for such Settlement Date to the account
specified hereto free of payment through the Clearance
System.
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Share Delivery
Quantity:
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For any
Settlement Date, a number of Shares, as calculated by the
Calculation Agent, equal to the Net Share Settlement Amount for
such Settlement Date divided by the Settlement Price on the
Valuation Date in respect of such Settlement Date rounded down to
the nearest whole number, plus cash in lieu of any
fractional Shares (based on such Settlement Price).
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Net Share
Settlement Amount:
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For any
Settlement Date, an amount equal to the product of (i) the Number
of Warrants exercised or deemed exercised on the relevant Exercise
Date (or in the case of any exercise (including any Automatic
Exercise) on an Expiration Date, the Daily Number of Warrants for
such Expiration Date), (ii) the Strike Price Differential for such
Settlement Date and (iii) the Warrant Entitlement. For avoidance of
doubt, if any Warrants are exercised prior to the first Expiration
Date, the Calculation Agent will proportionately adjust each Daily
Number of Warrants to reflect such exercise.
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Strike Price
Differential:
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(a) If the
Settlement Price for any Valuation Date is greater than the Strike
Price, an amount equal to the excess of such Settlement Price over
the Strike Price; or
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(b) If such
Settlement Price is less than or equal to the Strike Price,
zero.
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Settlement
Price:
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For any
Valuation Date, the per Share volume-weighted average price for
such Valuation Date as displayed under the heading “Bloomberg
VWAP” on Bloomberg page SBAC.UQ <equity> AQR (or any
successor thereto) in respect of the period from 9:30 a.m. to 4:00
p.m. (New York City time) on such Valuation Date or if such price
is unavailable, the market value of one Share on such Valuation
Date, as determined by the Calculation Agent in its reasonable
discretion (in each case, without regard to pre-open or after hours
trading outside of any regular trading session for such Valuation
Date). Notwithstanding anything to the contrary in the Equity
Definitions, if there is a Market Disruption Event on any Valuation
Date, then the Calculation Agent shall determine the Settlement
Price for such Valuation Date on the basis of its good faith
estimate of the market value for the relevant Shares on such
Valuation Date.
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Settlement
Date:
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For any
Exercise Date, the date defined as such in Section 6.2 of the
Equity Definitions, subject to Section 9(p)(i) hereof.
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Cash Settlement
Election:
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With respect to
all Warrants to be exercised on the Expiration Dates, the Company
can elect Cash Settlement by delivering a written notice to Bank
(the “ Cash Settlement Notice ”) on or prior to
the fifth (5 th )
scheduled Exchange Business Day immediately preceding the First
Expiration Date, which Cash Settlement Notice shall
contain:
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(i) a
representation that (x) on the date of such Cash Settlement Notice,
neither the Company nor any of its affiliates is in possession of
any material non-public information with respect to the Company or
its Shares, (y) the Company is electing Cash Settlement in good
faith and not as part of a plan or scheme to evade the prohibitions
of Rule 10b-5 under the Securities Exchange Act of 1934, as amended
(the “Exchange Act ”) and (z) the Company has
not entered into or altered any hedging transaction relating to the
Shares corresponding to or offsetting the Transaction;
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(ii) a
representation that the Company is not electing Cash Settlement to
create actual or apparent trading activity in the Shares (or any
security convertible into or exchangeable for the Shares) or to
raise or depress or otherwise manipulate the price of the Shares
(or any security convertible into or exchangeable for the
Shares);
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(iii) an
acknowledgment by the Company that (A) any transaction by Bank
following the Company’s election of Cash Settlement shall be
made at Bank’s sole discretion and for Bank’s own
account and (B) the Company does not have, and shall not attempt to
exercise, any influence over how, when, whether or at what price to
effect such transactions, including, without limitation, the price
paid or received per Share pursuant to such transactions, or
whether such transactions are made on any securities exchange or
privately; and
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(iv) an
agreement by the Company that, during the period commencing on the
date of such Cash Settlement Notice and ending on the second
Exchange Business Day following the last Settlement Date hereunder,
without the prior written consent of Bank, the Company shall not,
and shall cause its affiliates and affiliated purchasers (each as
defined in Rule 10b-18 under the Exchange Act) not to, directly or
indirectly (including, without limitation, by means of a derivative
instrument), purchase, offer to purchase, place any bid or limit
order that would effect a purchase of, or commence any tender offer
relating to, any Shares or any security convertible into or
exchangeable for the Shares in the public markets.
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Cash
Settlement:
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If Cash
Settlement is applicable, on each Settlement Date, the Company
shall deliver to Bank (to an account specified by Bank) the Net
Share Settlement Amount for such Settlement Date.
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In addition to
any other requirements set forth herein, the Company agrees that it
shall not have the right to elect Cash Settlement if Bank notifies
the Company that, in the reasonable judgment of Bank the election
of Cash Settlement or any purchases of Shares that Bank (or its
affiliates) might make in connection therewith based upon the
advice of counsel and as a result of events occurring after the
Trade Date, would raise material risks under applicable securities
laws.
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Failure to
Deliver:
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Inapplicable
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Other
Applicable Provisions:
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The provisions
of Sections 6.6, 6.7, 6.8, 6.9 and 6.10 of the Equity Definitions
will be applicable, except that all references in such provisions
to “Physically-Settled” shall be read as references to
“Net Share Settled”. “Net Share Settled” in
relation to any Warrant means that Net Share Settlement is
applicable to that Warrant.
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3. Additional Terms applicable to
the Transaction:
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Adjustments
applicable to the Warrants:
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Method of
Adjustment:
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Calculation
Agent Adjustment. For the avoidance of doubt, in making any
adjustments under the Equity Definitions, the Calculation Agent may
adjust the Strike Price, the Number of Warrants, the Daily Number
of Warrants and the Warrant Entitlement. Notwithstanding the
foregoing, any cash dividends or distributions on the Shares,
whether or not extraordinary, shall be governed by Section 9(k) of
this Confirmation and not by Section 9.1(c) of the Equity
Definitions.
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Extraordinary
Events applicable to the Transaction:
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Consequence of
Merger Events
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(a)
Share-for-Share:
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Alternative
Obligation; provided that the Calculation Agent will
determine if the Merger Event affects the theoretical value of the
Transaction and if so Bank in its sole discretion may elect to make
adjustments to any of the Strike Price, the Number of Warrants, the
Daily Number of Warrants, the Warrant Entitlement and any other
term necessary to reflect the characteristics (including
volatility, dividend practice, borrow cost and liquidity) of the
New Shares. Notwithstanding the foregoing, Cancellation and Payment
shall apply in the event the New Shares are not publicly traded on
a United States national securities exchange or quoted on The
NASDAQ Global Select Market or The NASDAQ Global Market (or their
respective successors).
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Share-for-Other:
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Cancellation
and Payment
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(c)
Share-for-Combined:
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Cancellation
and Payment; provided that on or prior to the Merger Date
the Bank may elect, in its sole discretion, to apply the
consequence specified opposite “Share for Share” to
that portion of the consideration that consists of New Shares (as
determined by the Calculation Agent) and the consequence specified
opposite “Share for-Other” to that portion of the
consideration that consists of Other Consideration (as determined
by the Calculation Agent).
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In the event of any “Tender
Offers” (as defined in the 2002 ISDA Equity Derivatives
Definitions (the “ 2002 Definitions ”)) ,
the following consequences, each as defined in the 2002 Definitions
and including any relevant cross references, shall apply to such
Tender Offers:
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(a)
Share-for-Share:
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Modified
Calculation Agent Adjustment (as defined in the 2002 Definitions
and including any relevant cross references)
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(b)
Share-for-Other:
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Modified
Calculation Agent Adjustment (as defined in the 2002 Definitions
and including any relevant cross references)
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(c)
Share-for-Combined:
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Modified
Calculation Agent Adjustment (as defined in the 2002 Definitions
and including any relevant cross references)
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Nationalization
or Insolvency:
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Cancellation
and Payment
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4. Calculation
Agent:
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Bank, acting in
its capacity as Calculation Agent
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5. Account Details:
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(a)
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Account for
payments to Company:
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To be provided by Company
Account for delivery of Shares from
Company:
To be provided by Company
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(b)
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Account for
payments to Bank:
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[ ]
Account for delivery of Shares to
Bank:
[ ]
6. Offices:
The Office of Company for the
Transaction is: Inapplicable, Company is not a Multibranch
Party.
The Office of Bank for the
Transaction is:
[ ]
[ ]
6
7. Notices: For purposes of this
Confirmation:
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(a)
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Address for
notices or communications to Company:
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SBA Communications
Corporation
5900 Broken Sound Parkway
NW
Boca Raton, Florida 33487
Attention: Tom Hunt
Telephone No.:
Facsimile No.:
Address for notices or
communications to Bank:
[ ]
8. Representations and Warranties of
the Company
The representations and warranties
of the Company set forth in Section 3 of the Purchase
Agreement (the “ Purchase Agreement ”) dated as
of the Trade Date and relating to the issuance of USD 450,000,000
principal amount of 4.00% Convertible Senior Notes due 2014, (the
“ Convertible Notes ”) between the Company and
Citigroup Global Markets Inc., Barclays Capital Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc. and Wachovia Capital
Markets, LLC (collectively, the “ Initial Purchasers
”) are true and correct and are hereby deemed to be repeated
to Bank as if set forth herein. The Company hereby further
represents and warrants to Bank that:
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(a)
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The Company has
all necessary corporate power and authority to execute, deliver and
perform its obligations in respect of the Transaction; such
execution, delivery and performance have been duly authorized by
all necessary corporate action on the Company’s part; and
this Confirmation has been duly and validly executed and delivered
by the Company and constitutes its valid and binding obligation,
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except that rights to
indemnification and contribution hereunder may be limited by
federal or state securities laws or public policy relating
thereto.
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(b)
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Neither the
execution and delivery of this Confirmation nor the incurrence or
performance of obligations of the Company hereunder will conflict
with or result in a breach of the certificate of incorporation or
by-laws (or any equivalent documents) of the Company, or any
applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any
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 the Company or any of its
subsidiaries is subject, or constitute a default under, or result
in the creation of any lien under, any such agreement or
instrument, or breach or constitute a default under any agreements
and contracts of the Company and the significant subsidiaries filed
as exhibits to the Company’s Annual Report on Form 10-K for
the year ended December 31, 2008, as updated by any subsequent
filings.
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(c)
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No consent,
approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required in connection
with the execution, delivery or performance by the Company of this
Confirmation, except such as have been obtained or made and such as
may be required under the Securities Act of 1933, as amended (the
“ Securities Act ”) or state securities
laws.
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(d)
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The Shares
initially issuable upon exercise of the Warrant by the net share
settlement method (the “ Warrant Shares ”) have
been reserved for issuance by all required corporate action of the
Company. The Warrant Shares have been duly authorized and, when
delivered against payment therefor (which may include Net Share
Settlement in lieu of cash) and otherwise as contemplated by the
terms of the Warrant following the exercise of the Warrant in
accordance with the terms and conditions of the Warrant, will be
validly issued, fully-paid and non-assessable, and the issuance of
the Warrant Shares will not be subject to any preemptive or similar
rights.
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(e)
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The Company is
an “eligible contract participant” (as such term is
defined in Section 1(a)(12) of the Commodity Exchange Act, as
amended.
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(f)
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The Company and
each of its affiliates is not, on the date hereof, in possession of
any material non-public information with respect to
Company.
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(g)
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The Company is
a “qualified institutional buyer” as defined in Rule
144A under the Securities Act.
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(h)
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The assets used
by the Company for its obligations under the Transaction
(1) are not assets of any “plan” (as such term is
defined in Section 4975 of the Internal Revenue Code (the
“Code”)) subject to Section 4975 of the
Code or any “employee benefit plan” (as such term is
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”))
subject to Title I of ERISA, and (2) do not constitute
“plan assets” within the meaning of Department of Labor
Regulation 2510.3-101, 29 CFR Section 2510-3-101.
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9. Other Provisions:
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(a)
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Opinions . The
Company shall deliver an opinion of counsel, dated as of the Trade
Date, to Bank with respect to the matters set forth in Sections
8(a) through (e) of this Confirmation.
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(b)
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Amendment . If
the Initial Purchasers exercise their right to receive additional
Convertible Notes (the “ Additional Convertible Notes
”) as set forth in the Purchase Agreement, then on the
Additional Premium Payment Date (as defined below), the Number of
Warrants will be automatically increased by additional Warrants
(the “ Additional Warrants ”) in proportion to
such Additional Convertible Notes and an additional premium equal
to the product
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