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CONFORMED COPY
DISPOSITION AGREEMENT (this "Agreement") dated as of the
17th day of May, 2000, among CROWN CASTLE INTERNATIONAL CORP., a
Delaware corporation (the "Company"), CROWN CASTLE UK HOLDINGS
LIMITED, a company incorporated under the laws of England and
Wales ("CCUK"), which was formerly known as Castle Transmission
Services (Holdings) Ltd, FRANCE TELECOM S.A., a company
incorporated under the laws of France ("FT"), TELEDIFFUSION DE
FRANCE INTERNATIONAL S.A. ("TDF"), a wholly owned indirect
subsidiary of FT and a company incorporated in France, and
TRANSMISSION FUTURE NETWORKS B.V., a wholly owned indirect
subsidiary of FT and a company organized under the laws of the
Netherlands ("TFN"), and the FINANCIAL INSTITUTIONS (as defined
herein) that have executed counterpart signature pages hereto.
W I T N E S S E T H :
WHEREAS TFN holds equity interests in the Company and CCUK, and FT
proposes to enter into the Letter of Undertakings (as defined below) providing
for the disposition of such equity interests; and
WHEREAS, to facilitate consummation of the disposition of such equity
interests and FT's compliance with the Letter of Undertakings, the Company,
CCUK, FT, TDF and TFN desire to enter into this Agreement.
NOW, THEREFORE, the Company, CCUK, FT, TDF and TFN, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms; Interpretation. (a) As used in
this Agreement, capitalized terms shall have the meanings assigned to such terms
as set forth below:
"Additional FT Shares" has the meaning specified in Section 3.03.
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"Affiliate" and "Associate", when used with reference to any
person, have the respective meanings ascribed to such terms in Rule 12b-2 of the
Exchange Act, as in effect on the date of this Agreement.
A person shall be deemed the "beneficial owner" of, and shall
be deemed to "beneficially own", and shall be deemed to have "beneficial
ownership" of:
(i) any securities that such person or any of such person's
Affiliates or Associates is deemed to "beneficially own" within the
meaning of Rule 13d-3 under the Exchange Act, as in effect on the date
of this Agreement; and
(ii) any securities (the "underlying securities") that such
person or any of such person's Affiliates or Associates has the right
to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or
understanding (written or oral), or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or otherwise (it
being understood that such person shall also be deemed to be the
beneficial owner of the securities convertible into or exchangeable for
the underlying securities).
"Business Day" means any day that is not a Saturday, a Sunday,
a bank holiday or any other day on which commercial banking institutions in New
York, New York, Paris, France, or London, England, are not generally open for
business.
"By-laws" means the By-laws of the Company, as amended from
time to time.
"CCUK Shares" means the ordinary shares of 1p each of CCUK.
"CCUK Services Agreement" means the Amended and Restated
Services Agreement dated August 1998 between CCUK and TDF, as amended.
"CCUK Shareholders Agreement" means the Shareholders Agreement
dated August 1998 among the Company, CCUK and TDF, as amended.
"CCUK Warrants" means warrants to purchase CCUK Shares.
"Charter" means the certificate of incorporation of the
Company, as amended from time to time.
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"Class A Stock" means the Company's Class A Common Stock,
$0.01 par value per share.
"Commission" means the Securities and Exchange Commission, or
any other U.S. agency at the time administering the Securities Act and the
Exchange Act.
"Common Stock" means shares of the Company's common stock, par
value $0.01 per share.
"Contract" has the meaning set forth in Section 2.01(a).
"Equity Security" means any security which is an ordinary
share, a preferred share or a common share or is classified as an equity
security under U.S. generally accepted accounting principles, or any securities
convertible or exchangeable for any such equity security.
"Equity Swap Agreements" has the meaning set forth in Section
4.01(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar U.S. securities statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"Exchange Agreement" means the Share Exchange Agreement dated
as of April 24, 1998, among the Company, CCUK, TDF, and TFN.
"Final Disposition Date" means the second anniversary of the
Separation Date, or if the Registration Period has been extended pursuant to
Section 1.09 of Annex I hereto, the Registration Termination Date.
"Financial Institution" means any financial institution,
including any trust, limited liability company or other entity formed for
purposes of the transactions contemplated by the Equity Swap Agreements and
wholly owned and exclusively controlled by such financial institution,
reasonably acceptable to the Company.
"FT Credit Event" means (i) the cessation of activity by FT or
the commencement of a voluntary winding-up procedure or any other equivalent
procedure in respect of FT; (ii) subject to applicable law, the commencement of
rehabilitation proceedings or any equivalent proceedings relating to FT; or
(iii) the commencement of liquidation proceedings or any other equivalent
proceedings affecting FT.
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"FT Group" means FT and its Affiliates (other than the Company
and its subsidiaries).
"FT Interest" means all Equity Securities of the Company or
CCUK beneficially owned by a member of the FT Group.
"Governance Agreement" means the Governance Agreement dated as
of August 21, 1998, among the Company, CCUK, TDF, and TFN, as supplemented as of
May 17, 1999.
"Governmental Entity" has the meaning set forth in Section
2.01(a).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976.
"Law" has the meaning set forth in Section 2.01(a).
"Letter of Undertakings" means the letter agreement published
on May 10, 2000 between FT and the United Kingdom Secretary of State for Trade
and Industry regarding the disposition of the FT Interest.
"Lien" has the meaning set forth in Section 2.01(a).
"Offering Expenses" has the meaning specified in Section 1.05
of Annex I hereto.
"Order" has the meaning set forth in Section 2.01(a).
"person" means an individual, corporation, limited liability
company, partnership, joint venture, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Permitted Transferee" with respect to any Financial
Institution means one or more financial institutions (including any trust,
limited liability company or other entity formed for purposes of such transfer
and wholly owned and exclusively controlled by one or more of such financial
institutions) reasonably acceptable to the Company to whom such Financial
Institution transfers its Residual Shares in connection with an equity swap or
similar transaction.
"Primary Shares" has the meaning set forth in Section 3.03.
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"Registered Offering" has the meaning set forth in Section
3.01.
"Registration Period" means (i) any period prior to the first
anniversary of the Separation Date during which the Financial Institutions have
the right to Transfer the Residual Shares pursuant to the last sentence of
Section 4.02(b) and (ii) the period beginning on the first anniversary of the
Separation Date and ending on the Final Disposition Date.
"Registration Termination Date" has the meaning set forth in
Section 1.09 of Annex I hereto.
"Required Disposition Notice" has the meaning set forth in
Section 4.02(d).
"Residual Share Sale" has the meaning set forth in Section
4.01(a).
"Residual Shares" has the meaning set forth in Section
4.01(a).
"Restricted Shares" means each Residual Share held by a
Financial Institution or a Permitted Transferee until the earlier of (i) the
date on which such Residual Share has been effectively registered under the
Securities Act and disposed of in accordance with the terms of this Agreement,
(ii) the date on which such Residual Share is distributed to the public pursuant
to Rule 144 under the Securities Act or (iii) the date of any other disposition
of such Residual Share by such Financial Institution (other than to a controlled
Affiliate of such Financial Institution that becomes a party to this Agreement
or a Permitted Transferee of such Financial Institution).
"Rules" has the meaning set forth in Section 8.09(b).
"Securities Act" means the Securities Act of 1933, as amended,
or any similar U.S. securities statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Separation Date" means the earlier of (x) the date on which
the closing of the Registered Offering occurs and (y) July 31, 2000 or, if any
of the managing underwriters for the Registered Offering indicate that market
conditions are such that completion of the Registered Offering prior to such
date is inadvisable, October 31, 2000.
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"Stockholders Agreement" means the Stockholders Agreement,
dated as of August 21, 1998, among the Company, TDF and the other stockholders
of the Company named in Schedule I thereto, as amended.
"Threshold Number" means that number of shares of Common Stock
to be sold by FT in the Registered Offering the disposition of which would
result in the FT Group having a maximum beneficial interest in the Company of
less than 10% on a fully diluted basis, including the assumed conversion of all
Equity Securities of the Company and CCUK held by or issuable to the FT Group
into shares of Common Stock (without taking into account any Primary Shares
proposed to be sold by the Company in the Registered Offering or the conversion
of any Equity Securities of the Company and CCUK held by any other person).
"Transfer" has the meaning set forth in Section 4.02(b).
"Transfer Agreement" has the meaning set forth in Section
4.02(b).
(b) Whenever the words "include", "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
ARTICLE II
Representations, Warranties and Covenants
SECTION 2.01. Representations, Warranties and Covenants of FT,
TDF and TFN. FT, TDF and TFN hereby jointly and severally represent, warrant and
covenant to the Company, CCUK and the Financial Institutions as follows:
(a) Authority. Each of FT, TDF and TFN has all requisite power
and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by FT, TDF and TFN. This
Agreement has been duly executed and delivered by FT, TDF and TFN and
constitutes a valid and binding obligation of FT, TDF and TFN
enforceable against FT, TDF and TFN in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws relating to or
affecting creditor's rights generally from time to time in effect and
to general principles of equity (including concepts of materiality,
reasonableness,
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good faith and fair dealing), regardless of whether considered in a
proceeding in equity or at law. Other than filings required under
applicable securities laws, under the HSR Act, if applicable, and the
consent of the United Kingdom Office of Fair Trading, neither the
execution, delivery or performance of this Agreement by FT, TDF or TFN
nor the consummation by FT, TDF or TFN of the transactions contemplated
hereby will (i) require any filing with, or permit, authorization,
consent or approval of, any U.S., state or local government or any
court, tribunal, administrative agency or commission or other
governmental or regulatory authority or agency, domestic, foreign or
supranational (a "Governmental Entity"), (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time
or both) a default under, or give rise to any right of termination,
amendment, cancelation or acceleration under, or result in the creation
of any pledge, claim, lien, charge, encumbrance or security interest of
any kind or nature whatsoever (a "Lien") upon any of the properties or
assets of FT, TDF or TFN under, any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture, lease,
contract, agreement or other instrument or obligation (a "Contract") to
which FT, TDF or TFN is a party or by which FT, TDF or TFN or any of
FT's, TDF's or TFN's properties or assets, including the FT Interest,
may be bound the result of which would have a material adverse effect
on the business, operations or financial condition of the FT Group
taken as a whole or the ability of any member of the FT Group to
fulfill its obligations under, or consummate the transactions
contemplated by, this Agreement or (iii) violate any judgment, order,
writ, preliminary or permanent injunction or decree (an "Order") or any
statute, law, ordinance, rule or regulation of any Governmental Entity
(a "Law") applicable to FT, TDF or TFN or any of FT's, TDF's or TFN's
properties or assets, including the FT Interest, the violation of which
would have a material adverse effect on the business, operations or
financial condition of the FT Group taken as a whole or the ability of
any member of the FT Group to fulfill its obligations under, or
consummate the transactions contemplated by, this Agreement.
(b) The FT Interest. The FT Interest consists of 13,872,396
shares of Common Stock, 11,340,000 shares of Class A Common Stock,
2,163,000,000 CCUK Shares and CCUK Warrants to purchase 257,500,000
CCUK Shares. The FT Interest and the certificates representing such FT
Interest are now and at all times after the date of this Agreement and
prior to the Separation Date will be
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held by TFN or another member of the FT Group, or by a nominee or
custodian for its benefit, and TFN or another member of the FT Group
has good title to such FT Interest, free and clear of any Liens,
proxies, voting trusts or agreements, except for any such Liens or
proxies arising under the Charter, the By-laws, the CCUK Shareholders
Agreement, the Stockholders Agreement, the Governance Agreement, the
Exchange Agreement or this Agreement. No member of the FT Group owns of
record or beneficially any Equity Securities of the Company or CCUK
other than the FT Interest.
(c) No Contrary Agreements. FT, TDF and TFN shall not, except
as contemplated by Article IV or Section 5.01, (i) sell, transfer,
pledge, assign or otherwise dispose of, or enter into any Contract,
option or other arrangement (including any profit sharing arrangement)
or understanding with respect to the sale, transfer, pledge, assignment
or other disposition of, the FT Interest to any person other than the
Company or the Company's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to all or any portion of
the FT Interest or (iii) take any other action that would in any way
restrict, limit or interfere with the performance of their respective
obligations hereunder or the transactions contemplated hereby.
(d) Stop Transfer. Each of FT, TDF and TFN agrees with, and
covenants to, the Company that the Company and CCUK shall not register
the transfer of any certificate representing any portion of the FT
Interest unless such transfer is made in accordance with Article III,
Article IV or Section 5.01. Each of FT, TDF and TFN authorizes any
applicable depositary or securities custodian for the Equity Securities
of the Company or CCUK to restrict transfer other than in accordance
with Article III, Article IV or Section 5.01 of FT's, TDF's or TFN's
beneficial interests in any global security that represents any portion
of the FT Interest.
SECTION 2.02. Representations and Warranties of the Company
and CCUK. The Company and CCUK hereby jointly and severally represent and
warrant to FT, TDF, TFN and the Financial Institutions as follows:
(a) Authority. Each of the Company and CCUK has all requisite
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the
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consummation of the transactions contemplated hereby have been duly
authorized by the Company and CCUK. This Agreement has been duly
executed and delivered by the Company and CCUK and constitutes a valid
and binding obligation of the Company and CCUK enforceable against the
Company and CCUK in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
and other similar laws relating to or affecting creditor's rights
generally from time to time in effect and to general principles of
equity (including concepts of materiality, reasonableness, good faith
and fair dealing), regardless of whether considered in a proceeding in
equity or at law. Other than filings required under applicable
securities laws and under the HSR Act, if applicable, neither the
execution, delivery or performance of this Agreement by the Company and
CCUK nor the consummation by the Company and CCUK of the transactions
contemplated hereby will (i) require any filing with, or permit,
authorization, consent or approval of, any Governmental Entity, (ii)
result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default under, or give rise to any
right of termination, amendment, cancelation or acceleration under, or
result in the creation of any Lien upon any of the properties or assets
of the Company or CCUK under, any of the terms, conditions or
provisions of any Contract to which the Company or CCUK is a party or
by which the Company or CCUK or any of the Company's or CCUK's
properties or assets may be bound the result of which would have a
material adverse effect on the business, operations or financial
condition of the Company and CCUK taken as a whole or the ability of
the Company or CCUK to fulfill its obligations under, or consummate the
transactions contemplated by, this Agreement or (iii) violate any Order
or Law applicable to the Company or CCUK or any of the Company's or
CCUK's properties or assets the violation of which would have a
material adverse effect on the business, operations or financial
condition of the Company and CCUK taken as a whole or the ability of
the Company or CCUK to fulfill its obligations under, or consummate the
transactions contemplated by, this Agreement.
SECTION 2.03. Representations and Warranties of the Financial
Institutions. Each Financial Institution hereby severally and not jointly
represents and warrants to the Company, CCUK, FT, TDF and TFN as follows:
(a) Authority. Such Financial Institution has all requisite
power and authority to execute and deliver this Agreement and to
consummate the
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transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by such Financial
Institution. This Agreement has been duly executed and delivered by
such Financial Institution and constitutes a valid and binding
obligation of such Financial Institution enforceable against such
Financial Institution in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws relating to or affecting
creditor's rights generally from time to time in effect and to general
principles of equity (including concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law. Other than filings
required in connection with the registration of securities contemplated
hereby, other filings required under applicable securities laws and
filings under the HSR Act, if applicable, neither the execution,
delivery or performance of this Agreement by such Financial Institution
nor the consummation by such Financial Institution of the transactions
contemplated hereby will (i) require any filing with, or permit,
authorization, consent or approval of, any Governmental Entity, (ii)
result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default under, or give rise to any
right of termination, amendment, cancelation or acceleration under, or
result in the creation of any Lien upon any of the properties or assets
of such Financial Institution under, any of the terms, conditions or
provisions of any Contract to which such Financial Institution is a
party or by which such Financial Institution or any of such Financial
Institution's properties or assets may be bound the result of which
would have a material adverse effect on the business, operations or
financial condition of such Financial Institution or the ability of
such Financial Institution to fulfill its obligations under, or
consummate the transactions contemplated by, this Agreement or (iii)
violate any Order or Law applicable to such Financial Institution or
any of such Financial Institution's properties or assets the violation
of which would have a material adverse effect on the business,
operations or financial condition of such Financial Institution or the
ability of such Financial Institution to fulfill its obligations under,
or consummate the transactions contemplated by, this Agreement.
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ARTICLE III
Registered Public Offering
SECTION 3.01. Registered Offering. Promptly following the
execution and delivery of this Agreement by each of the parties hereto (other
than the Financial Institutions) and the Letter of Undertakings by each of the
parties thereto, the Company shall file a registration statement under the
Securities Act contemplating a registered public offering of, and FT and the
Company thereafter promptly shall commence a registered public offering (the
"Registered Offering") pursuant to which FT will offer, on an underwritten
basis, no fewer than the Threshold Number of shares of Common Stock. Prior to
the filing of such registration statement, FT will cause, and the Company and
CCUK will facilitate, the conversion or exchange of such portion of the FT
Interest into shares of Common Stock as is necessary to permit FT to consummate
the Registered Offering as contemplated by this Agreement. If prior to the
commencement of the "road show" for the Registered Offering, developments occur
in connection with a proposed private placement, strategic sale or other
disposition of all or a portion of the FT Interest that could reasonably be
expected to require amendment or supplementation of the registration statement
pursuant to which the Registered Offering is being made, then FT may elect to
delay the commencement of such "road show". No such election shall affect any
other provision of this Agreement or extend any time period set forth herein.
SECTION 3.02. Selection of Managing Underwriters. FT shall
designate one investment banking firm reasonably acceptable to the Company, and
the Company shall designate one investment banking firm reasonably acceptable to
FT, to serve as joint book-running managing underwriters of the Registered
Offering. Each other underwriter that participates in the Registered Offering
shall be reasonably acceptable to each of FT and the Company.
SECTION 3.03. Inclusion of Primary Shares and Additional FT
Shares; Priority Rights. If and to the extent that the managing underwriters
shall be of the opinion that such inclusion would not adversely affect the
marketing of the Threshold Number of shares of Common Stock to be sold by FT,
the Company may elect to register for sale by the Company up to 3.5 million
shares of Common Stock or a quantity of securities of the Company convertible
into up to 3.5 million shares of Common Stock (the "Primary Shares"), plus such
number of additional shares of Common Stock or other securities as may be
required to satisfy the Company's obligations pursuant to any overallotment
option as described below, on the registration statement for the
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Registered Offering. If and to the extent that the managing underwriters shall
be of the opinion that such inclusion would not adversely affect the marketing
of the Threshold Number of shares of Common Stock to be sold by FT and the
Primary Shares to be sold by the Company, FT may elect to register for sale by
FT additional shares (the "Additional FT Shares") of Common Stock on the
registration statement for the Registered Offering. If the managing underwriters
determine during the marketing process or in connection with the pricing of the
Registered Offering that it would be advisable to reduce the number of shares of
Common Stock offered for sale, such reduction shall be made as follows: First,
by reducing the number of Additional FT Shares; and second, by reducing the
number of Primary Shares. Any shares of Common Stock or other securities sold
pursuant to an overallotment option shall be allocated to the Company until the
Company has sold shares of Common Stock (or securities convertible into a number
of shares of Common Stock) equal to 7.0 million in the aggregate and thereafter
shall be allocated pro rata between the Company and FT based on the number of
such shares (or shares issuable upon conversion of any convertible securities),
as applicable, sold by each. The Company shall use reasonable efforts to obtain
any consents from holders of Equity Securities of the Company that have
registration rights as of the date of this Agreement necessary to permit the
consummation of the Registered Offering.
SECTION 3.04. Registration Procedures. The Registered Offering
shall be treated as a registration of Restricted Shares requested pursuant to
Section 1.02 or Section 1.03 of Annex I hereto and, except as set forth in this
Article III, the registration procedures set forth in Section 1.04 of Annex I
hereto shall govern the Registered Offering; provided, however, that the
Registered Offering shall not reduce the number of requests for registration
that may be made by holders of Restricted Shares pursuant to Section 1.02 or
Section 1.03 of Annex I hereto.
SECTION 3.05 Concurrent Offerings. Prior to the earlier of the
Separation Date and the termination of this Agreement, except for (i) offerings
made pursuant to registration statements on Forms S-4, S-8 or any successor
thereto and (ii) offerings made pursuant to demand by holders of Equity
Securities of the Company who are entitled to the benefits of a Contract entered
into prior to the date hereof providing for the registration of securities of
the Company, the Company will not conduct or facilitate any offerings of its
Equity Securities, whether for its own account or that of other stockholders.
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ARTICLE IV
Sale of Residual Shares; Obligations Following
Residual Share Sale
SECTION 4.01. Sale of Residual Shares. (a) No later than one
Business Day after the earlier of (x) the closing of the Registered Offering and
(y) October 31, 2000, (i) FT shall, if it does not elect to sell the FT Interest
as then constituted to one or more Financial Institutions, exercise or surrender
to the Company all CCUK Warrants and convert or exchange all CCUK Shares and all
shares of Class A Stock beneficially owned by the FT Group into or for shares of
Common Stock, including the CCUK Ordinary Share contemplated to be retained by
TDF pursuant to the Governance Agreement, or, if FT elects to sell the FT
Interest as then constituted to one or more Financial Institutions, each
Financial Institution shall exercise or surrender to the Company all CCUK
Warrants and convert or exchange all CCUK Shares and all shares of Class A Stock
it purchases pursuant to clause (ii) below, and (ii) FT shall, subject to the
conditions set forth herein, sell (the "Residual Share Sale") either (A) all
shares of Common Stock beneficially owned by any member of the FT Group after
giving effect to the Registered Offering (such shares, including any shares of
Common Stock issued to a Financial Institution on exercise or surrender to the
Company of any CCUK Warrants and conversion or exchange of any CCUK Shares and
any shares of Class A Stock purchased by such Financial Institution, the
"Residual Shares") or (B) the FT Interest as then constituted to one or more
Financial Institutions; provided, however, that FT may retain a number of
Residual Shares sufficient to satisfy any obligation it may have pursuant to
Section 3.03 to sell shares of Common Stock pursuant to an overallotment option
until the closing of such overallotment option or, if the overallotment option
has not been exercised, the expiration date of such overallotment option. The
price of the Residual Share Sale shall be determined by FT and the Financial
Institutions. In the event the closing of the Registered Offering has not
occurred on or prior to October 31, 2000, FT may sell the Residual Shares no
later than one Business Day after October 31, 2000 pursuant to Section 5.01
instead of selling the Residual Shares to one or more Financial Institutions
pursuant to clause (ii) of this Section 4.01(a).
(b) The Company and FT agree that, in connection with the
Residual Share Sale, FT or its Affiliates may enter into one or more
arrangements (together with the agreement governing the Residual Share Sale and
any related agreements, the "Equity Swap Agreements") with any of the Financial
Institutions providing for FT's economic participation in any gain or loss
realized by such Financial
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Institution in respect of any disposition by such Financial Institution of the
Residual Shares; provided, however that no member of the FT Group shall retain
or obtain any right to vote or influence the voting of the Residual Shares
following the Separation Date. Any provision of an Equity Swap Agreement
permitting any member of the FT Group to approve of, or otherwise influence the
timing of, the disposition of the Residual Shares by any Financial Institution
may not extend beyond the Final Disposition Date. The Equity Swap Agreements
shall not be inconsistent with this Agreement.
SECTION 4.02. Obligations of Financial Institutions. (a) FT
shall cause each Financial Institution in connection with, and as a condition
of, the Residual Share Sale to such Financial Institution, to enter into a
written counterpart to this Agreement (the form of which is set forth as Exhibit
A hereto) satisfactory in all respects to the Company and CCUK whereby such
Financial Institution shall agree to be bound by the terms of this Agreement
specified in such counterpart. In no event shall any Financial Institution have
any obligation under this Agreement unless and until it has executed a
counterpart to this Agreement.
(b) Transfer Restrictions. Prior to the first anniversary of
the Separation Date, each member of the FT Group and each Financial Institution
shall not, without the prior written consent of the Company, sell, transfer,
pledge, assign or otherwise dispose of ("Transfer") any Residual Shares, or
enter into any Contract, option or other arrangement (including any profit
sharing arrangement other than the Equity Swap Agreements) or understanding with
respect to the sale, transfer, pledge, assignment or other disposition of any
Residual Shares (a "Transfer Agreement") or enter into a transaction (other than
the Equity Swap Agreements) which would have the same effect, including any
swap, hedge or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Residual Shares, whether such
transaction is to be settled by delivery of the Residual Shares, in cash or
otherwise, in each case except for the Residual Share Sale and except to any
controlled Affiliate of such Financial Institution that becomes a party to this
Agreement or to any Permitted Transferee of such Financial Institution. Each
Financial Institution that Transfers Residual Shares to a Permitted Transferee
shall obtain the agreement of such Permitted Transferee to comply with the
obligations of such Financial Institution with respect to such Residual Shares
under this Agreement and shall cause the Company to be made a third party
beneficiary of such agreement. No transfer by a Financial Institution pursuant
to this Section 4.02(b) shall relieve such Financial Institution of its
obligations
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under this Agreement if the transferee does not perform such obligations.
Notwithstanding the foregoing, after 90 days have elapsed from the Separation
Date, the Financial Institutions shall have the right to Transfer the Residual
Shares and enter into a Transfer Agreement, if an FT Credit Event has occurred
and is continuing.
(c) Voting. Following the Separation Date, whenever a member
of the FT Group or a Financial Institution shall have the right to vote any
Residual Shares such party hereby directs its proxy appointed below to (i) be
present, in person or represented by proxy, at any stockholder meeting of the
Company for the purpose of determining the presence of a quorum at such meeting
or for any action by written consent, and (ii) vote or cause to be voted all
such party's Residual Shares in the same proportion as the votes cast by or on
behalf of the other holders of Common Stock, including any other securities of
the Company voting with the Common Stock as a class. Each member of the FT Group
and each Financial Institution hereby irrevocably grants to, and appoints, E.
Blake Hawk, Executive Vice President and General Counsel of the Company, and
Donald J. Reid, Associate General Counsel of the Company, in their respective
capacities as officers of the Company, and any such individuals who shall
hereafter succeed to any such office of the Company, and each of them
individually, as such party's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such party, to vote such
party's Residual Shares, or grant a consent or approval in respect of such
Residual Shares, in each case in accordance with this Section 4.02(c).
(d) Company Right to Require Disposition. If a Financial
Institution has not disposed of its Residual Shares prior to the Final
Disposition Date, the Company may require such Financial Institution to dispose
of the Residual Shares by delivering a written notice (the "Required Disposition
Notice") to such Financial Institution invoking the right set forth in this
Section 4.02(d). Each such Financial Institution shall use reasonable efforts to
dispose of the Residual Shares within 90 Business Days after receipt of the
Required Disposition Notice.
(e) Failure to Comply with Required Disposition. If one or
more Financial Institutions has not disposed of its Residual Shares within 90
Business Days after receipt of the Required Disposition Notice, the Company
shall have the right in its sole discretion to appoint a nationally recognized
investment banking firm (selected after consultation with FT and such Financial
Institutions) to conduct a sale of the Residual Shares held directly or
indirectly by such Financial Institutions. The sale will be consummated as
promptly as practicable in a manner and on
<PAGE> 16
16
such terms as are determined by such investment banking firm. All Offering
Expenses incurred in connection with a sale pursuant to this paragraph shall be
shared on a pro rata basis by the selling Financial Institutions. Each member of
the FT Group and each selling Financial Institution will use all reasonable
efforts to take or cause to be taken all action and to do or cause to be done
all things necessary, proper or advisable to consummate the sale contemplated by
this Section 4.02(e). At the closing of the sale contemplated by this Section
4.02(e), each selling Financial Institution shall deliver certificates
evidencing the Residual Shares held directly or indirectly by such Financial
Institution, duly endorsed, or accompanied by duly executed instruments of
transfer, free and clear of any Liens, against delivery of such Financial
Institution's share of the net sale proceeds.
(f) Stop Transfer. Each Financial Institution shall agree
with, and covenant to, the Company that the Company shall not register the
transfer of any certificate representing any portion of the Residual Shares
unless such transfer is made in accordance with the terms of this Agreement.
Each Financial Institution shall authorize any applicable depositary or
securities custodian for the Common Stock to restrict transfer otherwise than in
accordance with this Agreement of such Financial Institution's beneficial
interests in any global security that represents such Residual Shares.
(g) Legends. The parties hereto acknowledge and agree that, on
or after the Separation Date, the Company shall, against surrender by a member
of the FT Group or a Financial Institution of certificates representing the
Residual Shares (including certificates representing CCUK Warrants, CCUK Shares
or shares of Class A Stock being surrendered pursuant to Section 4.01(a)), issue
new certificates to such party representing the Common Stock surrendered or
issued upon conversion, exercise or exchange of CCUK Warrants, CCUK Shares or
shares of Class A Stock with one or both of the following legends, as
applicable:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN A DISPOSITION AGREEMENT, DATED
AS OF THE 17TH DAY OF MAY, 2000, AS IT MAY BE AMENDED FROM TIME TO
TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF
THE ISSUER. NO REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE
ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL
HAVE BEEN COMPLIED WITH."
<PAGE> 17
17
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF
TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER
UNLESS SUCH TRANSFER IS MADE IN CONNECTION WITH AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR IN A TRANSACTION EXEMPT FROM
OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF SUCH ACT."
In the event that a Financial Institution requests that either or both legends
set forth in this Section 4.02(g) be removed, the Company shall, upon the
written request of such Financial Institution, issue to such Financial
Institution a new certificate evidencing such Residual Shares without either or
both of the legends, as applicable, required by this Section 4.02(g) endorsed
thereon; provided, however, that such Financial Institution shall furnish or
cause to be furnished to the Company and its transfer agent such legal opinions
(which may be rendered by internal or external counsel to such Financial
Institution) as the Company and its transfer agent may reasonably require to
confirm that such legend is not required on such certificate.
SECTION 4.03. FT Standstill. Following the Separation Date,
other than pursuant to the Equity Swap Agreements, no member of the FT Group
shall (i) acquire, offer to acquire, or agree to acquire, by purchase, gift or
otherwise, the beneficial ownership of any Residual Shares or (ii) enter into a
transaction which would have the same effect, including any swap, hedge or other
arrangement that results in the acquisition of any of the economic consequences
of ownership of any of the Residual Shares of the Company or CCUK, whether such
transaction is to be settled by delivery of the Residual Shares, in cash or
otherwise.
ARTICLE V
Alternative Dispositions
SECTION 5.01. Alternative Dispositions. FT may continue to
entertain any other opportunities to and, if they so elect, may sell all or part
of the FT Interest in private placements, strategic sales or otherwise, in each
case in coordination with the Company and in compliance with all existing
agreements with respect to the FT Interest; provided, however, that, following
the commencement of the "roadshow" for the Registered Offering, FT shall not (i)
other than as disclosed in the registration statement for the Registered
Offering, reduce the number of shares of Common Stock to be offered in the
Registered Offering to an amount below the Threshold Amount, as calculated on
such
<PAGE> 18
18
date, or (ii) take any action with respect to any such other opportunities that
could reasonably be expected in the determination of counsel to the Company to
require amendment or supplementation of the registration statement pursuant to
which the Registered Offering is being made. If, as a result of any such
alternative disposition, the Registered Offering shall be terminated, all
Offering Expenses incurred prior to the date of such termination shall be borne
by FT and the Company in proportion to the number of shares of Common Stock that
would have been sold by each (or the number of shares of Common Stock into which
the securities to be sold would have been convertible) had the Registered
Offering been consummated.
SECTION 5.02. Exchange or Conversion. The Company shall use
its best efforts to facilitate any conversion or exchange of CCUK Shares and
Class A Common Shares beneficially owned by the FT Group or the Financial
Institutions into or for shares of Common Stock and the exercise of the CCUK
Warrants beneficially owned by the FT Group or the Financial Institutions into
CCUK Shares as may be necessary for the purpose of carrying out the terms of
this Agreement; any such conversion, exchange or exercise by the Financial
Institutions shall be on the same terms as though made by a member of the FT
Group.
ARTICLE VI
Termination of Existing Agreements
SECTION 6.01. Termination of Existing Agreements. The Company,
CCUK, FT, TDF and TFN hereby agree that, effective as of the Separation Date,
all rights and obligations of each of the Company, CCUK and the members of the
FT Group under the CCUK Services Agreement, the CCUK Shareholders Agreement, the
Governance Agreement, the Stockholders Agreement and the Exchange Agreement
shall automatically and irrevocably terminate, in each case other than
obligations of the Company or CCUK owed to persons other than members of the FT
Group, and that they shall enter into such amendments to such agreements as are
necessary to memorialize the foregoing, provided that any provisions of such
agreements regarding conversion and exchange of ownership interests remain
effective until such conversion or exchange (whether by a member of the FT Group
or a Financial Institution) is completed and any Financial Institution holding
all or a portion of the FT Interest shall have the benefit of such provisions
prior to such conversion or exchange.
<PAGE> 19
19
SECTION 6.02. Waiver of Rights. Each of FT, TDF and TFN, on
behalf of itself and each other member of the FT Group, hereby irrevocably
waives, effective as of the Separation Date, any rights it may otherwise retain
under the Charter or By-Laws and hereby consents to any amendment to the Charter
or By-Laws to eliminate reference to any such rights.
ARTICLE VII
Registration of Residual Shares
SECTION 7.01. Registration of Residual Shares. At such time as
a Financial Institution enters into a counterpart to this Agreement as
contemplated by Section 4.02(a), the holders of Restricted Shares shall be
entitled to the registration provisions set forth in Annex I hereto, the terms
of which are hereby incorporated herein and made a part of this Agreement.
SECTION 7.02. Priority of Agreements. The registration rights
set forth herein shall supersede any existing registration rights in respect of
the shares of Common Stock to be included in the Registered Offering to which
any member of the FT Group may be a beneficiary, including pursuant to the
Stockholders Agreement, and each of FT, TDF and TFN, on behalf of itself and
each other member of the FT Group, hereby irrevocably waives all such rights
unless and until this Agreement is terminated in accordance with its terms.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Reasonable Efforts; Further Actions. The parties
hereto each will use all reasonable efforts to take or cause to be taken all
action and to do or cause to be done all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement.
SECTION 8.02. Consents. The parties hereto will cooperate with
each other in filing any necessary applications, reports or other documents
with, giving any notices to, and seeking any consents from, all regulatory
bodies and all governmental agencies and authorities and all third parties as
may be required in connection with the consummation of the transactions
contemplated by this Agreement.
<PAGE> 20
20
SECTION 8.03. Amendment and Waiver. This Agreement may not be
amended, supplemented or discharged, and no provision hereof may be modified,
except expressly by an instrument in writing signed by the parties hereto. Any
term or provision of this Agreement may be waived, but only in writing by the
party which is entitled to the benefit thereof. No waiver of any provision
hereof by any party shall constitute a waiver thereof by any other party nor
shall any such waiver constitute a continuing waiver of any matter by such
party.
SECTION 8.04. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but which
together shall constitute but one instrument. It shall not be necessary for each
party to sign each counterpart so long as every party has signed at least one
counterpart.
SECTION 8.05. Notices. All notices, requests, demands, waivers
and other communications required or permitted to be given under this Agreement
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified mail,
postage prepaid, return receipt requested; or (d) overnight delivery service.
Notices shall be sent to the appropriate party at its address or facsimile
number given below (or at such other address or facsimile number for such party
as shall be specified by notice given hereunder):
If to the Company: Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, TX 77057
Fax: (713) 570-3150
Attn: General Counsel
with a copy to: Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Fax: (212) 474-3700
Attn: Stephen L. Burns, Esq.
If to the France Telecom
FT Group: 6, place d'Alleray
77505 Paris Cedex 15
France
Fax: 33 1 44 44 98 03
Attn: Eric Bouvier
<PAGE> 21
21
with a copy to: Allen & Overy
10 East 50th Street
New York, NY 10022
Fax: (212) 610-6399
Attn: Cathleen E. McLaughlin, Esq.
if to a holder of
Restricted Shares: To the address set forth
in the counterpart pursuant
to which such holder becomes
a party to this Agreement.
All such notices, requests, demands, waivers and communications shall be deemed
received upon (i) actual receipt thereof by the addressee, (ii) actual delivery
thereof to the appropriate address or (iii) in the case of a facsimile
transmission, upon transmission thereof by the sender and issuance by the
transmitting machine of a confirmation slip that the number of pages
constituting the notice have been transmitted without error. In the case of
notices sent by facsimile transmission, the sender shall contemporaneously mail
a copy of the notice to the addressee at the address provided for above.
However, such mailing shall in no way alter the time at which the facsimile
notice is deemed to be received or the validity of such facsimile notice.
SECTION 8.06. Binding Effect; Assignment. This Agreement and
all of the provisions hereof shall be binding upon and shall inure to the
benefit of the parties and their respective successors and permitted assigns;
provided, however, that the provisions hereof shall not be binding upon and
shall not inure to the benefit of any Financial Institution unless and until it
has executed a counterpart to this Agreement. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned, directly or
indirectly, including by operation of law, by any party hereto, except as
provided in Section 7.01.
SECTION 8.07. Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties or any of them with respect to the subject matter hereof.
SECTION 8.08. Expenses. Except as otherwise set forth herein,
each of the parties hereto shall pay its own costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby,
including the fees and expenses of counsel, irrespective of when incurred.
<PAGE> 22
22
SECTION 8.09. Applicable Law and Jurisdiction; Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York, regardless of the laws that might otherwise
apply under applicable principles of conflicts of laws thereof.
(b) Any controversy, dispute or claim arising out of, in
connection with, or in relation to the interpretation, performance or breach of
this Agreement or otherwise arising out of the execution hereof, including any
claim based on contract, tort or statute, shall be determined, at the request of
any party, by arbitration conducted in New York, New York, before and in
accordance with the then-existing Rules for commercial Arbitration of the
American Arbitration Association (the "Rules"), and any judgment or award
rendered by the arbitrator shall be final, binding and unappealable. Any state
or federal court having jurisdiction may enter a judgment, or issue an
injunction or other equitable relief, on such award. Each of the parties hereby
irrevocably and unconditionally submits, for itself and its property, to the
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, for purposes of entering such
judgment or issuing such injunction or other equitable relief. The pre-trial
discovery procedures of the Federal Rules of Civil Procedure shall apply to any
arbitration hereunder. Any controversy concerning whether a dispute is an
arbitrable dispute or as to the interpretation or enforceability of this
paragraph shall be determined by the arbitrator. The arbitrator shall be a
neutral arbitrator who has expertise in the subject matter(s) of the dispute.
The parties intend that the provisions to arbitrate set forth herein be valid,
enforceable and irrevocable. The designation of the situs or a governing law for
this Agreement or the arbitration shall not be deemed an election to preclude
application of the Federal Arbitration Act, if it would be applicable. In the
arbitrator's award the arbitrator shall allocate, in such arbitrator's
discretion, among the parties to the arbitration all costs of the arbitration,
including the fees and expenses of the arbitrator and reasonable attorneys'
fees, costs and expert witness expenses of the parties.
The parties agree to comply with any award made in any such
arbitration proceedings that has become final in accordance with the Rules and
agree to the entry of a judgment in any jurisdiction upon any award rendered in
such proceedings becoming final under the Rules. The arbitrator shall be
entitled, if appropriate, to award any remedy in such proceedings permitted in a
civil proceeding under the laws of the State of New York including, if
appropriate,
<PAGE> 23
23
monetary damages, specific performance and all other forms of legal and
equitable relief.
SECTION 8.10. Article and Section Headings. The article,
section and other headings contained in this Agreement and the exhibits and
annexes hereto are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated.
SECTION 8.11. Specific Enforcement. The parties hereto
acknowledge and agree that irreparable damage would occur in the event any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached for which money damages would not be
an adequate remedy. It is accordingly agreed that, notwithstanding Section 8.09,
so long as permitted by applicable law, the parties shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof without
the necessity of proving the inadequacy of money damages as a remedy.
SECTION 8.12. Severability. Should any provision of this
Agreement for any reason be declared invalid or unenforceable, such decision
shall not affect the validity or enforceability of any of the other provisions
of this Agreement, which remaining provisions shall remain in full force and
effect and the application of such invalid or unenforceable provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable shall be valid and enforced to the fullest extent permitted by
law.
SECTION 8.13. Publicity. Except as otherwise required by any
applicable law, court process or the rules of a national securities exchange or
the Nasdaq National Market, for so long as this Agreement is in effect, none of
any member of the FT Group, the Financial Institutions, the Company or CCUK
shall issue or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this Agreement
without the consent of each other party to this Agreement, which consent shall
not be unreasonably withheld.
<PAGE> 24
24
IN WITNESS WHEREOF, each party hereto has executed this Agreement as
of the day and year first above written.
CROWN CASTLE INTERNATIONAL
CORP.,
by /s/ E. Blake Hawk
---------------------------
Name: E. Blake Hawk
Title:
CROWN CASTLE UK HOLDINGS
LIMITED,
by /s/ E. Blake Hawk
---------------------------
Name: E. Blake Hawk
Title:
FRANCE TELECOM S.A.,
by /s/ Eric Bouvier
---------------------------
Name: Eric Bouvier
Title:
TELEDIFFUSION DE FRANCE
INTERNATIONAL S.A.,
by /s/ Eric Bouvier
---------------------------
Name: Eric Bouvier
Title:
TRANSMISSION FUTURE NETWORKS
B.V.
by /s/ Eric Bouvier
---------------------------
Name: Eric Bouvier
Title:
<PAGE> 25
Exhibit A
[Form of Counterpart Signature Page]
The undersigned hereby agrees to be bound, severally and not
jointly with any other Financial Institution, effective as of such time
as this Counterpart Signature Page is executed, as a "Financial
Institution" to the preamble, the recitals, Article I, Section 2.03,
Section 4.01, Section 4.02, Article VII, Article VIII and Annex I (the
"Financial Institution Provisions") of the Disposition Agreement dated
as of May 17, 2000, among CROWN CASTLE INTERNATIONAL CORP., a Delaware
corporation, CROWN CASTLE UK HOLDINGS LIMITED, a company incorporated
under the laws of England and Wales, which was formerly known as Castle
Transmission Services (Holdings) Ltd, FRANCE TELECOM S.A., a company
incorporated under the laws of France ("FT"), TELEDIFFUSION DE FRANCE
INTERNATIONAL S.A., a wholly owned indirect subsidiary of FT and a
company incorporated in France, and TRANSMISSION FUTURE NETWORKS B.V.,
a wholly owned indirect subsidiary of FT and a company organized under
the laws of the Netherlands, with the rights of a Financial Institution
party set forth therein.
---------------------------
(Financial Institution)
Dated: By:
------------------ ---------------------------
(signature)
---------------------------
(name and title)
---------------------------
(city/state/zip code)
---------------------------
(phone)
---------------------------
(facsimile)
<PAGE> 26
2
Acknowledged as of the date set forth above:
CROWN CASTLE INTERNATIONAL CORP.,
by /s/ E. Blake Hawk
---------------------------
Name: E. Blake Hawk
Title:
FRANCE TELECOM, S.A.,
by /s/ Eric Bouvier
---------------------------
Name: Eric Bouvier
Title:
<PAGE> 27
Annex I
Registration Provisions
SECTION 1.01. "Piggy-Back" Registration. If the Company
proposes to register any of its securities under the Securities Act for sale to
the public at any time during the Registration Period, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms S-4, S-8 or another form not
available for registering the Restricted Shares for sale to the public), each
such time it will give written notice to all holders of outstanding Restricted
Shares of its intention so to do. Upon the written request of any such holder,
received by the Company within 20 days after the giving of any such notice by
the Company, to register any of its Restricted Shares, the Company will, subject
as provided below, cause the Restricted Shares as to which registration shall
have been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder of such
Restricted Shares so registered. In the event that any registration pursuant to
this Section 1.01 shall be, in whole or in part, an underwritten public offering
of Equity Securities of the Company, the number of securities to be included in
such an underwriting may be reduced if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold therein as follows: first, all
persons (other than the Company, the requesting holders of Restricted Shares and
requesting holders of Equity Securities of the Company who are entitled to the
benefits of a Contract entered into prior to the date hereof providing for the
registration of Equity Securities of the Company) who have requested shares to
be registered shall be reduced in the manner provided by the Company. In the
event that the number of shares requested to be registered after such reduction
shall still be in excess of the number of shares recommended to be registered by
the underwriters, then the number of shares shall be further reduced pro rata
among the requesting holders of Restricted Shares according to the number of
shares requested by each such holder to be registered. In the event the number
of shares requested to be registered after such reduction shall still be in
excess of the number of shares recommended to be registered by the underwriters
then the number of shares shall be reduced among the requesting holders of
Equity Securities of the Company who are entitled to the benefits of a Contract
entered into prior to the date hereof providing for the registration of Equity
Securities of the Company in accordance with the applicable Contracts relating
to such holders' registration rights. Notwithstanding the foregoing provisions,
the Company may withdraw any
<PAGE> 28
2
registration statement referred to in this Section 1.01 without thereby
incurring any liability to the holders of Restricted Shares. There shall be no
limit to the number of registrations of Restricted Shares which may be effected
under this Section 1.01.
SECTION 1.02. Demand Registration. (a) At any time during the
Registration Period, the holders of Restricted Shares may request the Company to
register under the Securities Act all or a portion of the Restricted Shares held
by them for sale in the manner specified in such notice; provided, that the
reasonably anticipated aggregate net proceeds to the sellers from such public
offering would exceed (A) $30 million at any time when such Restricted Shares
could not be sold pursuant to Rule 144(k) under the Securities Act or (B) $50
million at any time when such Restricted Shares could be sold pursuant to Rule
144(k) under the Securities Act. Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 1.02 within 90 days
after the effective date of a registration statement filed by the Company
covering a firm commitment underwritten public offering in which the holders of
Restricted Shares shall have been entitled to join pursuant to Sections 1.01 or
1.03 and in which there shall have been effectively registered all Restricted
Shares as to which registration shall have been requested.
(b) Following receipt of any notice under Section 1.02(a), the
Company shall notify all holders of Restricted Shares from whom such notice has
not been received and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of Restricted
Shares specified in such notice (and in all notices received by the Company from
other holders within 20 days after the giving of such notice by the Company). If
such method of disposition shall be an underwritten public offering, the holders
of a majority of the Restricted Shares to be sold in such offering may designate
the managing underwriter of such offering, subject to the approval of the
Company, which approval shall not be unreasonably withheld or delayed. The
Company shall be obligated to register Restricted Shares pursuant to Section
1.02(a) on one occasion only and pursuant to Section 1.02(b), subject to Section
1.03(b), on one occasion only, provided, however, that such obligations shall be
deemed satisfied only when a registration statement covering all Restricted
Shares specified in notices received as aforesaid, for sale in accordance with
the method of disposition specified by the requesting holders, shall have become
effective and, if such method of disposition is a firm commitment underwritten
public offering, all such shares shall have been sold pursuant thereto unless
(i) any
<PAGE> 29
3
such registration statement does not become effective due to the withdrawal
thereof by or on the request of the holders of 66-2/3% of the Restricted Shares
to be registered or (ii) the reason all Restricted Shares specified in notices
pursuant to this Section 1.02 are not registered is due to a limitation on the
registration of shares by the managing underwriter (which limitation shall be
applied pro rata) and no more than 50% of the Restricted Shares so specified are
not registered as a result of the limitation imposed by such managing
underwriter or the voluntary withdrawal of any such shares from registration by
the holder thereof.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 1.02, for sale in accordance
with the method of disposition specified by the requesting holders, Common Stock
to be sold by the Company for its own account, except as and to the extent that,
in the opinion of the managing underwriter (if such method of disposition shall
be an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Shares to be sold.
SECTION 1.03. Registration on Form S-3. (a) If at any time
during the Registration Period (i) a holder or holders of a majority of the
Restricted Shares request that the Company file a registration statement on Form
S-3 or any successor thereto for a public offering of all or any portion of the
Restricted Shares held by such requesting holder or holders, the reasonably
anticipated aggregate price to the public of which would exceed (A) $30 million
at any time when such Restricted Shares could not be sold pursuant to Rule
144(k) under the Securities Act or (B) $50 million at any time when such
Restricted Shares could be sold pursuant to Rule 144(k) under the Securities
Act, and (ii) the Company is a registrant entitled to use Form S-3 or any
successor thereto to register such shares, then the Company shall use its best
efforts to register under the Securities Act on Form S-3 or any successor
thereto, for public sale in accordance with the method of disposition specified
in such notice, the number of Restricted Shares specified in such notice.
Whenever the Company is required by this Section 1.03 to use its best efforts to
effect the registration of Restricted Shares, each of the procedures and
requirements of Section 1.02 and 1.04 shall apply to such registration;
provided, however, that, subject to Section 1.03(b), the Company shall not be
required to effect more than one registration on Form S-3 which may be requested
and obtained under this Section 1.03.
(b) If the Company shall have effected a demand registration
pursuant to Section 1.02, it shall not be required to effect a registration on
Form S-3 pursuant to Section 1.03, and if the Company shall have effected a
<PAGE> 30
4
registration on Form S-3 pursuant to Section 1.03, it shall not be required to
effect a demand registration pursuant to Section 1.02.
SECTION 1.04. Registration Procedures. If and whenever the
Company is required by the provisions of Sections 1.01, 1.02 or 1.03 to use its
best efforts to effect the registration of any Restricted Shares under the
Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such securities;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (i) below and
comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Shares covered by such registration
statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Shares and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as
such persons reasonably may request in order to facilitate the public
sale or other disposition of the Restricted Shares covered by such
registration statement;
(d) use its best efforts to register or qualify the Restricted
Shares covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Restricted
Shares or, in the case of an underwritten public offering, the managing
underwriter reasonably shall request; provided, however, that the
Company shall not for any such purpose be required to qualify generally
to transact business as a foreign corporation in any jurisdiction where
it is not so qualified or to consent to general service of process in
any such jurisdiction;
(e) use its best efforts to list the Restricted Shares covered
by such registration statement with any securities exchange or market
on which the Common Stock, if applicable, is then listed or quoted;
<PAGE> 31
5
(f) immediately notify each seller of Restricted Shares and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(g) at the request of any seller of Restricted Shares, use its
best efforts to furnish on the date that Restricted Shares are
delivered to the underwriters for sale or otherwise first sold pursuant
to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration,
addressed to the underwriters and such seller, stating that such
registration statement has become effective under the Securities Act
and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Securities Act and (B) to such other effects as are customary
for such opinions in light of the nature of the offering and such
seller as may be reasonably requested by the underwriters, such seller
or their respective counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to
the underwriters and such seller stating that they are independent
public accountants within the meaning of the Securities Act and that,
in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or
any amendment or supplement thereto, comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial
matters (including information as to the period ending no more than
five business days prior to the date of such letter) with respect to
such registration as such underwriters or such seller reasonably may
request;
(h) (i) make available for inspection by each seller of
Restricted Shares, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant
or other agent retained by such seller or underwriter, all financial
and other records, pertinent corporate
<PAGE> 32
6
documents and properties of the Company, (ii) cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement and (iii) provide
each seller and its counsel with the opportunity to participate in the
preparation of such registration statement; provided, however, that the
foregoing inspection, information gathering and participation shall be
conducted by one underwriter, one counsel and one accounting firm, in
each case designated by the holders of a majority of the Restricted
Shares included on such Registration Statement;
(i) with respect to any registration statement pursuant to
which Restricted Shares are to be sold pursuant to Sections 1.01, 1.02
or 1.03, the Company shall use its best efforts to cause such
registration statement to become and remain effective for 180 days; and
(j) enter into such agreements and take such other actions as
the sellers of Restricted Shares and the underwriters reasonably
request in order to expedite or facilitate the disposition of such
Restricted Shares, including preparing for and participating in such
number of "road shows", and all such other customary selling efforts,
as the underwriters reasonably request in order to expedite or
facilitate such disposition.
In connection with each registration hereunder, the sellers of
Restricted Shares will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to ensure compliance with Federal and applicable
state securities laws.
In connection with each registration pursuant to Sections
1.01, 1.02 or 1.03 covering an underwritten public offering, the Company and
each seller agree to enter into a written agreement with the managing
underwriter selected in the manner herein provided in such form and containing
such provisions as are customary in the securities business for such an
arrangement between such underwriter and companies of the Company's size and
investment stature (it being understood that the Company will not require a
selling stockholder to make any representation, warranty or agreement in such
agreement other than with respect to such stockholder, the ownership of such
stockholder's securities being registered and such stockholder's intended method
of disposition). The representations and warranties by, and
<PAGE> 33
7
the other agreements on the part of, the Company to and for the benefit of the
underwriters in such written agreement with the underwriters shall also be made
to and for the benefit of the selling stockholders. In the event that any
condition to the obligations under any such written agreement with the
underwriters are not met or waived, and such failure to be met or waived is not
attributable to the fault of the selling stockholders requesting a demand
registration pursuant to Sections 1.02 and 1.03, such request for registration
shall not be deemed exercised for purposes of determining whether such
registration has been effected for purposes of Section 1.02 or 1.03.
SECTION 1.05. Expenses. All expenses incurred by the Company
in complying with Sections 1.01, 1.02 or 1.03, including all printing expenses,
fees and disbursements of counsel and independent public accountants for the
Company, fees and expenses (including counsel fees) incurred in connection with
complying with state securities or "blue sky" laws, fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars, costs of insurance, fees and disbursements of counsel for the
sellers of Restricted Shares and all underwriting discounts and selling
commissions applicable to the sale of Restricted Shares are called "Offering
Expenses".
All Offering Expenses in connection with each registration
statement under Sections 1.01, 1.02 or 1.03 shall be borne by the participating
sellers in proportion to the number of shares of Common Stock sold by each (or
the number of shares of Common Stock into which the securities sold are
convertible), or by such participating sellers other than the Company (except to
the extent the Company shall be a seller) as they may agree. All registration
fees and National Association of Securities Dealers, Inc. filing fees in
connection with each registration statement under Section 1.01, 1.02 or 1.03
shall be borne by the Company.
SECTION 1.06. Indemnification and Contribution. (a) In the
event of a registration of any of the Restricted Shares under the Securities Act
pursuant to Sections 1.01, 1.02 or 1.03, the Company will indemnify and hold
harmless each seller of such Restricted Shares thereunder, each underwriter of
such Restricted Shares thereunder and each other person, if any, who controls
such seller or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue
<PAGE> 34
8
statement of any material fact contained in any registration statement under
which such Restricted Shares were registered under the Securities Act pursuant
to Sections 1.01, 1.02 or 1.03, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished in writing by such seller, such underwriter or such controlling person
specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted
Shares under the Securities Act pursuant to Sections 1.01, 1.02 or 1.03, each
seller of such Restricted Shares thereunder, severally and not jointly, will
indemnify and hold harmless the Company, each person, if any, who controls the
Company within the meaning of the Securities Act, each officer of the Company
who signs the registration statement, each director of the Company, each
underwriter and each person who controls any underwriter within the meaning of
the Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer, director, underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement under
which such Restricted Shares were registered under the Securities Act pursuant
to Sections 1.01, 1.02, or 1.03, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer, director,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or
<PAGE> 35
9
liability arises out of or is based upon an untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement or prospectus; and provided further,
however, that the liability of each seller hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the public offering price of the shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the
proceeds received by such seller from the sale of Restricted Shares covered by
such registration statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 1.06 and shall only
relieve it from any liability which it may have to such indemnified party under
this Section 1.06 if and to the extent the indemnifying party is prejudiced by
such omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 1.06 for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other
<PAGE> 36
10
expenses related to such participation to be reimbursed by the indemnifying
party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
indemnified party exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 1.06 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification may
not be enforced in such case notwithstanding the fact that this Section 1.06
provides for indemnification in such case, (ii) contribution under the
Securities Act may be required on the part of any such selling holder or any
such controlling person in circumstances for which indemnification is provided
under this Section 1.06, or (iii) the indemnification provided for by this
Section 1.06 is insufficient to hold harmless an indemnified party, other than
by reason of the exceptions provided therein; then, and in each such case, the
Company and such holder will contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (after contribution from others) (x)
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other or (y)
if the allocation provided by clause (x) above is not permitted by applicable
law, or provides a lesser sum to the indemnified party than the amount
hereinafter calculated, in such proportion as is appropriate to reflect not only
the relative fault referred to in clause (x) above but also the relative
benefits received by the indemnifying party and the indemnified party from the
offering of the securities (taking into account the portion of the proceeds of
the offering received by each such party) as well as the statements or omissions
which resulted in such losses, claims, damages or liabilities and any other
relevant equitable considerations. No person will be required to contribute any
amount in excess of the proceeds received by such person in respect of all such
Restricted Shares offered and sold by it pursuant to such registration statement
and no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
SECTION 1.07. Changes in Common Stock; Successors. (a) If,
and as often as, there is any change in the Common Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any
<PAGE> 37
11
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Common Stock as so changed.
(b) If the Company consolidates with, or merges into or with,
another person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or a majority of its assets to any person or group, or any
person or group consolidates with, or merges into or with, the Company, each
holder of Restricted Shares shall, as a condition to the relevant transaction
involving such person, group or successor in business, be granted by such
person, group or successor in business, equivalent rights to the rights granted
in this Agreement.
SECTION 1.08. Rule 144 Reporting. With a view to making
available the benefits of certain rules and regulations of the Commission which
may at any time permit the sale of Restricted Shares to the public without
registration, the Company shall:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Shares forthwith upon
request a written statement by the Company as to its compliance with
the reporting requirements of such Rule 144 and of the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by
the Company as such holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing such holder to sell
any Restricted Shares without registration.
SECTION 1.09. Suspension of Registration Obligations; "Clear
Market" Conditions.(a) Notwithstanding the provisions of Section 1.04(a), (i)
the Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective (A) may be suspended on
one occasion for a period not to exceed 90 days if there exists at the time
material nonpublic information relating to the Company which, in the reasonable
opinion of the Company, should not be disclosed and (B) shall not apply for the
period which
<PAGE> 38
12
begins seven days prior to and ends 90 days after the commencement of a public
offering of the Common Stock, so long as the Company has fulfilled its notice
obligations under Sections 1.01, 1.02 or 1.03 with respect to such offering and
(ii) if a public offering of the Common Stock has been previously commenced,
neither the Company nor any controlling person of the Company shall commence
another public offering of the Common Stock until 90 days after the commencement
of such prior offering. If the Company's obligation to file a registration
statement, or cause such registration statement to become and remain effective,
is suspended at any time during the 90 days immediately preceding the second
anniversary of the Separation Date, then the Registration Period shall be
extended until the date (the "Registration Termination Date") that occurs a
number of days after the second anniversary of the Separation Date (or, if
later, the date on which such obligation is no longer suspended) equal to the
number of days during such 90 day period that such obligation is suspended.
(b) Except for (i) registration statements on Forms S-4, S-8
or any successor thereto and (ii) registration statements, prospectuses and
prospectus supplements filed following a demand by holders of Equity Securities
of the Company who are entitled to the benefits of a Contract entered into prior
to the date hereof providing for the registration of Equity Securities of the
Company, the Company will not file with the Commission any other registration
statement, or file a prospectus or prospectus supplement with respect to an
existing "shelf" registration statement, in each case with respect to its Equity
Securities, whether for its own account or that of other stockholders, from the
date of receipt of either (A) the notice from requesting holders contemplated by
Section 1.02 or (B) a notice from requesting holders (which may be delivered at
or following the time such holders deliver the notice requesting filing of a
registration statement pursuant to Section 1.03) that such holders intend
promptly to commence an offering pursuant to a registration statement filed
pursuant to Section 1.03, to until 90 days after the commencement of the public
offering of the Restricted Shares covered by the registration statement
requested pursuant to Section 1.02 or Section 1.03; provided, however, that the
Company shall not be required to refrain from filing any other registration
statement for a period prior to the commencement of such public offering that
would exceed 90 days.
<PAGE> 39
13
SECTION 1.10. Transferability of Registration Rights.
Registration rights conferred herein shall only inure to the benefit of holders
of Restricted Shares that become a party to the Agreement to which this Annex I
is annexed pursuant to Section 4.02(b) of such Agreement and their Permitted
Transferees.
SECTION 1.11. Other Registration Rights. The Company shall not
grant to any third party any registration rights inconsistent with any of those
contained herein or that would permit a beneficiary of such rights to demand
registration of Equity Securities of the Company prior to the Company's
satisfying any prior or concurrent demand to register Restricted Shares, so long
as any of the registration rights under this Agreement remains in effect.
<PAGE> 40
AMENDMENT NO. 1 TO DISPOSITION AGREEMENT (this "Agreement")
dated as of the 5th day of June, 2000, among CROWN CASTLE
INTERNATIONAL CORP., a Delaware corporation (the "Company"), CROWN
CASTLE UK HOLDINGS LIMITED, a company incorporated under the laws
of England and Wales ("CCUK"), which was formerly known as Castle
Transmission Services (Holdings) Ltd, FRANCE TELECOM S.A., a
company incorporated under the laws of France ("FT"),
TELEDIFFUSION DE FRANCE INTERNATIONAL S.A. ("TDF"), a wholly owned
indirect subsidiary of FT and a company incorporated in France, and
TRANSMISSION FUTURE NETWORKS B.V., a wholly owned indirect
subsidiary of FT and a company organized under the laws of the
Netherlands ("TFN"), and the FINANCIAL INSTITUTIONS (the "Financial
Institutions") that have executed counterpart signature pages
thereto.
W I T N E S S E T H :
WHEREAS the Company, CCUK, FT, TDF and TFN have entered into a
Disposition Agreement (the "Disposition Agreement") dated as of the 17th day of
May, 2000; and
WHEREAS, the Company, CCUK, FT, TDF and TFN desire to enter into this
Amendment to amend the Disposition Agreement.
Capitalized terms used and not otherwise defined in this Amendment
shall have the respective meanings assigned to them in the Disposition
Agreement, as amended hereby.
NOW, THEREFORE, the Company, CCUK, FT, TDF and TFN, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
ARTICLE I
Amendment to Disposition Agreement
SECTION 1.01. Amendment to Disposition Agreement. Upon the
effectiveness of this Amendment, the Disposition Agreement shall be and is
hereby amended as set forth in paragraph (a) below.
<PAGE> 41
2
(a) The reference to "one Business Day" in the first clause of the
first sentence of Section 4.01(a) shall be replaced by the phrase "30
calendar days".
SECTION 1.02. Disposition Agreement. Except as expressly amended or
modified herein, the Disposition Agreement (as amended hereby) shall continue in
full force and effect in accordance with the provisions hereof and thereof as in
existence on the date hereof. After the date hereof, any reference to the
Disposition Agreement, shall mean the Disposition Agreement as amended by this
Amendment.
ARTICLE II
Miscellaneous
SECTION 2.01. Amendment and Waiver. This Amendment may not be amended,
supplemented or discharged, and no provision hereof may be modified, except
expressly by an instrument in writing signed by the parties hereto. Any term or
provision of this Amendment may be waived, but only in writing by the party
which is entitled to the benefit thereof. No Waiver of any provision hereof by
any party shall constitute a waiver thereof by any other party nor shall any
such waiver constitute a continuing waiver of any matter by such party.
SECTION 2.02. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute but one instrument. It shall not be necessary for each party to sign
each counterpart so long as every party has signed at least one counterpart.
SECTION 2.03. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Amendment shall be
in writing and may be given by any of the following methods: (a) personal
delivery; (b) facsimile transmission; (c) registered or certified mail, postage
prepaid, return receipt requested; or (d) overnight delivery service. Notices
shall be sent to the appropriate party at its address or facsimile number given
below (or at such other address or facsimile number for such party as shall be
specified by notice given hereunder):
If to the Company: Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, TX 77057
Fax: (713) 570-3150
Attn: General Counsel
<PAGE> 42
3
with a copy to: Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Fax: (212) 474-3700
Attn: Stephen L. Burns, Esq.
If to the France Telecom
PT Group: 6, place d'Alleray
77505 Paris Cedex 15
France
Fax: 33 1 44 44 98 03
Attn: Eric Bouvier
with a copy to: Allen & Overy
10 East 50th Street
New York, NY 10022
Fax: (212) 610-6399
Attn: Cathleen E. McLaughlin, Esq.
if to a holder of
Restricted Shares: To the address set forth
in the counterpart pursuant to
which such holder becomes a party
to the Disposition Agreement.
All such notices, requests, demands, waivers and communications shall be deemed
received upon (i) actual receipt thereof by the addressee, (ii) actual delivery
thereof to the appropriate address or (iii) in the case of a facsimile
transmission, upon transmission thereof by the sender and issuance by the
transmitting machine of a confirmation slip that the number of pages
constituting the notice have been transmitted without error. In the case of
notices sent by facsimile transmission, the sender shall contemporaneously mail
a copy of the notice to the addressee at the address provided for above.
However, such mailing shall in no way alter the time at which the facsimile
notice is deemed to be received or the validity of such facsimile notice.
SECTION 2.04. Binding Effect; Assignment. This Amendment and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties and their respective successors and permitted assigns; provided,
however, that the provisions hereof shall not be binding upon and shall not
inure to the benefit of any Financial Institution unless and until it has
executed a counterpart to the Disposition Agreement. Neither this Amendment nor
any of the rights, interests or obligations hereunder shall be assigned,
directly or indirectly, including by operation of law, by any party hereto.
<PAGE> 43
SECTION 2.05. Entire Agreement. This Amendment constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties or any of them with respect to the subject matter
hereof.
SECTION 2.06. Expenses. Except as otherwise set forth in the Disposition
Agreement, each of the parties hereto shall pay its own costs and expenses
incurred in connection with this Amendment and the transactions contemplated
hereby, including the fees and expenses of counsel, irrespective of when
incurred.
SECTION 2.07. Applicable Law and Jurisdiction; Service of Process. (a)
This Amendment shall be construed in accordance with and governed by the law of
the State of New York, regardless of the laws that might otherwise apply under
applicable principles of conflicts of laws thereof.
(b) Any controversy, dispute or claim arising out of, in connection with,
or in relation to the interpretation, performance or breach of this Amendment or
otherwise arising out of the execution hereof, including any claim based on
contract, tort or statute, shall be determined, at the request of any party, by
arbitration conducted in New York, New York, before and in accordance with the
then-existing Rules for commercial Arbitration of the American Arbitration
Association (the "Rules"), and any judgment or award rendered by the arbitrator
shall be final, binding and unappealable. Any state or federal court having
jurisdiction may enter a judgment, or issue an injunction or other equitable
relief, on such award. Each of the parties hereby irrevocably and
unconditionally submits, for itself and its property, to the jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, for purposes of entering such judgment or
issuing such injunction or other equitable relief. The pre-trial discovery
procedures of the Federal Rules of Civil Procedure shall apply to any
arbitration hereunder. Any controversy concerning whether a dispute is an
arbitrable dispute or as to the interpretation or enforceability of this
paragraph shall be determined by the arbitrator. The arbitrator shall be a
neutral arbitrator who has expertise in the subject matter(s) of the dispute.
The parties intend that the provisions to arbitrate set forth herein be valid,
enforceable and irrevocable. The designation of the situs or a governing law for
this Amendment or the arbitration shall not be deemed an election to preclude
application of the Federal Arbitration Act, if it would be applicable. In the
arbitrator's award the arbitrator shall allocate, in
<PAGE> 44
5
such arbitrator's discretion, among the parties to the arbitration all costs of
the arbitration, including the fees and expenses of the arbitrator and
reasonable attorneys' fees, costs and expert witness expenses of the parties.
The parties agree to comply with any award made in any such arbitration
proceedings that has become final in accordance with the Rules and agree to the
entry of a judgment in any jurisdiction upon any award rendered in such
proceedings becoming final under the Rules. The arbitrator shall be entitled,
if appropriate, to award any remedy in such proceedings permitted in a civil
proceeding under the laws of the State of New York including, if appropriate,
monetary damages, specific performance and all other forms of legal and
equitable relief.
SECTION 2.08. Article and Section Headings. The article, section and
other headings contained in this Amendment and the exhibits and annexes hereto
are for reference purposes only and shall not affect the meaning or
interpretation of this Amendment. When a reference is made in this Amendment to
a Section, such reference shall be to a Section of this Amendment unless
otherwise indicated.
SECTION 2.09. Specific Enforcement. The parties hereto acknowledge and
agree that irreparable damage would occur in the event any of the provisions of
this Amendment were not performed in accordance with their specific terms or
were otherwise breached for which money damages would not be an adequate
remedy. It is accordingly agreed that, notwithstanding Section 2.07, so long as
permitted by applicable law, the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Amendment and to
enforce specifically the terms and provisions hereof without the necessity of
proving the inadequacy of money damages as a remedy.
SECTION 2.10. Severability. Should any provision of this Amendment for
any reason be declared invalid or unenforceable, such decision shall not affect
the validity or enforceability of any of the other provisions of this
Amendment, which remaining provisions shall remain in full force and effect and
the application of such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall be valid and enforced to the fullest extent permitted by law.
SECTION 2.11. Publicity. Except as otherwise required by any applicable
law, court process or the rules of a national securities exchange or the Nasdaq
National Market, for so long as this Amendment is in effect, none of any member
of the FT Group, the Financial Institutions, the
<PAGE> 45
IN WITNESS WHEREOF, each party hereto has executed this Amendment as of
the day and year first above written.
CROWN CASTLE INTERNATIONAL CORP.,
by /s/ E. Blake Hawk
------------------------------
Name: E. Blake Hawk
Title:
CROWN CASTLE UK HOLDINGS LIMITED,
by /s/ ILLEGIBLE
------------------------------
Name: ILLEGIBLE
Title:
FRANCE TELECOM S.A.,
by /s/ Eric Bouvier
------------------------------
Name: Eric Bouvier
Title:
TELEDIFFUSION DE FRANCE
INTERNATIONAL S.A.,
by /s/ Eric Bouvier
------------------------------
Name: Eric Bouvier
Title:
TRANSMISSION FUTURE NETWORKS B.V.,
by /s/ Eric Bouvier
------------------------------
Name: Eric Bouvier
Title:
