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CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL AND
OTHER SPECIAL RIGHTS OF PREFERRED
STOCK AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
6.25% CUMULATIVE CONVERTIBLE PREFERRED STOCK
CROWN CASTLE INTERNATIONAL CORP.
_________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_________________________
Crown Castle International Corp., a Delaware corporation (the "Company")
certifies that pursuant to the authority contained in its Certificate of
Incorporation (the "Certificate of Incorporation") and in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Company by unanimous written consent
dated July 12, 2000 adopted the following resolution which resolution remains in
full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of Directors
in accordance with the provisions of the Certificate of Incorporation, the Board
of Directors does hereby create, authorize and provide for the issuance of the
6.25% Cumulative Convertible Preferred Stock (the "Preferred Stock") having the
voting powers, designation, relative, participating, optional and other special
rights, preferences, and qualifications, limitations and restrictions thereof
that are set forth as follows:
(a) DESIGNATION. 8,050,000 shares of Preferred Stock are hereby designated
by the Board of Directors of the Company. Each share of Preferred Stock will
have a liquidation preference of $50.00 (the "Liquidation Preference").
(b) CURRENCY. All shares of Preferred Stock shall be denominated in United
States currency, and all payments and distributions thereon or with respect
thereto shall be made
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in United States currency. All references herein to "$" or "dollars" refer to
United States currency.
(c) RANKING. The Preferred Stock shall, with respect to dividend rights and
rights upon liquidation, winding up or dissolution, rank junior to (i) each
other class or series of capital stock of the Company, other than (A) the Common
Stock of the Company and any other class or series of capital stock of the
Company which by its terms ranks junior to the Preferred Stock, as to which the
Preferred Stock shall rank prior and (B) any other class or series of capital
stock of the Company which by its terms ranks on a parity with the Preferred
Stock, as to which the Preferred Stock shall rank on a parity or (ii) other
equity interests in the Company, in each case, including, without limitation,
warrants, rights, calls or options exercisable for or convertible into such
capital stock or equity interests, except as provided in the last sentence of
this paragraph (c). All equity securities of the Company to which the Preferred
Stock ranks prior (whether with respect to dividends or upon liquidation,
winding up, dissolution or otherwise), including the Common Stock of the
Company, are collectively referred to herein as the "Junior Stock". All equity
securities of the Company to which the Preferred Stock ranks on a parity
(whether with respect to dividends or upon liquidation, winding up, dissolution
or otherwise) are collectively referred to herein as the "Parity Stock". All
equity securities of the Company to which the Preferred Stock ranks junior
(whether with respect to dividends or upon liquidation, winding up, dissolution
or otherwise) are collectively referred to herein as the "Senior Stock". The
respective definitions of Junior Stock, Parity Stock and Senior Stock shall also
include any warrants, rights, calls or options exercisable for or convertible
into any Junior Stock, Parity Stock or Senior Stock, as the case may be. The
Preferred Stock shall, with respect to dividend rights and upon liquidation,
winding up or dissolution, rank junior to the Company's 12 3/4% Series B Senior
Exchangeable Preferred Stock due 2010, senior to the Company's Series A
Participating Cumulative Preferred Stock, when issued and on a parity with the
Company's Series A Cumulative Convertible Preferred Stock and, if and when
issued, the Company's Series B Cumulative Convertible Preferred Stock.
(d) DIVIDENDS. (i) The holders of shares of Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Company out of funds legally available therefor, dividends on the shares of
Preferred Stock, cumulative from the first date of issuance of any such shares
(the "Initial Issuance Date"), at a rate per annum of 6.25% of the Liquidation
Preference per share, payable in cash or common stock, subject to paragraph (l).
Dividends on the shares of Preferred Stock shall be payable quarterly in equal
amounts (subject to paragraph (d)(v) hereunder with respect to shorter periods,
including the first such period with respect to newly issued shares of Preferred
Stock) in arrears on February 15, May 15, August 15 and November 15 of each
year, or if any such date is not a Business Day, on the next succeeding Business
Day (each such date, a "Dividend Payment Date", and each such quarterly period,
a "Dividend Period"), in preference to and in priority over dividends on any
Junior Stock. Such dividends shall be paid to the holders of record of the
shares of Preferred Stock as they appear on the applicable Record Date. As used
herein, the term "Record Date" means, with respect to the dividends payable on
February 15, May 15, August 15 and November 15 of each year, February 1, May 1,
August 1 and November 1 of each year, respectively, or such other record date,
not more than 60 days and not less than 10 days preceding the
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applicable Dividend Payment Date, as shall be fixed by the Board of Directors of
the Company. Dividends on the shares of Preferred Stock shall be fully
cumulative and shall accrue (whether or not declared and whether or not there
are funds of the Company legally available for the payment of dividends) from
the Initial Issuance Date (or the last Dividend Payment Date for which dividends
were paid, as the case may be) based on a 360-day year comprised of twelve 30-
day months. Accrued and unpaid dividends for any past Dividend Period may be
declared and paid at any time, without reference to any Dividend Payment Date,
to holders of record on such date, not more than 45 days prior to the payment
thereof, as may be fixed by the Board of Directors of the Company.
(ii) No dividend shall be declared or paid or set apart for payment or
other distribution declared or made, whether in cash, obligations or shares of
capital stock of the Company or other property, directly or indirectly, upon any
shares of Junior Stock or Parity Stock, nor shall any shares of Junior Stock or
Parity Stock be redeemed, repurchased or otherwise acquired for consideration by
the Company through a sinking fund or otherwise, unless all accrued and unpaid
dividends through the most recent preceding Dividend Payment Date (whether or
not such dividends have been declared and whether or not there are funds of the
Company legally available for the payment of dividends) on the shares of
Preferred Stock and any Parity Stock have been or contemporaneously are declared
and paid in full; provided, however, that, notwithstanding any provisions in
this subparagraph (ii) to the contrary, the Company shall be entitled to (a)
declare and pay dividends on shares of Junior Stock payable solely in shares of
Junior Stock and on shares of Parity Stock payable solely in shares of Parity
Stock or Junior Stock, or in each case by an increase in the liquidation
preference of the Junior Stock or Parity Stock and (b) redeem, repurchase or
otherwise acquire Junior Stock or Parity Stock in exchange for consideration
consisting of Parity Stock or Junior Stock, in the case of Parity Stock, or of
Junior Stock, in the case of Junior Stock. When dividends are not paid in full,
as aforesaid, upon the shares of Preferred Stock, all dividends declared on the
Preferred Stock and any other Parity Stock shall be declared and paid either (A)
pro rata so that the amount of dividends so declared on the shares of Preferred
Stock and each such other class or series of Parity Stock shall in all cases
bear to each other the same ratio as accrued dividends on the shares of
Preferred Stock and such class or series of Parity Stock bear to each other or
(B) on another basis that is at least as favorable to the holders of the
Preferred Stock entitled to receive such dividends.
(iii) Any dividend payment made on the Preferred Stock shall first be
credited against the dividends accrued with respect to the earliest Dividend
Period for which dividends have not been paid.
(iv) All dividends paid with respect to shares of Preferred Stock pursuant
to this paragraph (d) shall be paid pro rata to the holders entitled thereto.
(v) Dividends (or cash amounts equal to accrued and unpaid dividends)
payable on the Preferred Stock for any period shorter or longer than three
months shall be computed on the basis of the actual number of days elapsed (in a
30-day month) since the applicable Dividend Payment Date or from the Initial
Issuance Date with respect to newly issued shares, as applicable, and based on a
360-day year of twelve 30-day months. No interest shall accrue or be payable in
respect of unpaid dividends.
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(e) LIQUIDATION PREFERENCE. (i) Upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, each holder of shares of
Preferred Stock shall be entitled to payment out of the assets of the Company
available for distribution of an amount equal to the then effective Liquidation
Preference per share of Preferred Stock held by such holder, plus all
accumulated and unpaid dividends therein to the date of such liquidation,
dissolution or winding up, before any distribution is made on any Junior Stock,
including, without limitation, Common Stock of the Company. After payment in
full of the an amount equal to then effective Liquidation Preference and all
accumulated and unpaid dividends to which holders of shares of Preferred Stock
are entitled, such holders shall not be entitled to any further participation in
any distribution of assets of the Company. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to shares of Preferred Stock and all other Parity Stock are not paid in
full, the holders of shares of Preferred Stock and the holders of the Parity
Stock shall share equally and ratably in any distribution of assets of the
Company in proportion to the full liquidation preference and all accumulated and
unpaid dividends to which each such holder is entitled.
(ii) Neither the voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Company nor the
consolidation, merger or amalgamation of the Company with or into any entity or
the consolidation, merger or amalgamation of any entity with or into the Company
shall be deemed to be a voluntary or involuntary liquidation, dissolution or
winding up of the Company or a reduction or decrease in the capital stock of the
Company.
(f) REDEMPTION AT MATURITY. (i) On August 15, 2012, the Company shall be
obligated to redeem out of lawfully available funds all outstanding shares of
Preferred Stock for cash, upon not less than 30 nor more than 60 days' prior
notice sent by first class mail to each holder's registered address, at an
amount equal to 100.0% of the Liquidation Preference per share, plus accumulated
and unpaid dividends to the date of redemption.
(ii) When shares of Preferred Stock are to be redeemed pursuant to this
paragraph (f), the notice of such redemption shall state: (A) the date fixed for
redemption; (B) the number of shares of Preferred Stock to be redeemed; (C) the
redemption price; (D) the place or places where such shares of Preferred Stock
are to be surrendered for payment of the redemption price; and (E) that
dividends on the shares to be redeemed will cease to accrue on such date fixed
for redemption unless the Company shall default in the payment of the redemption
price.
Notice having been given as provided in the preceding paragraph, and if on
or before the redemption date specified in such notice, an amount in cash
sufficient to redeem in full on the redemption date and at the redemption price
all shares of Preferred Stock called for redemption shall have been set apart
and deposited in trust so as to be available for such purpose and only for such
purpose, or shall have been paid to the holders thereof then effective as of the
close of business on such redemption date, and unless there shall be a
subsequent default in the payment of the redemption price, the shares of
Preferred Stock so called for redemption shall cease to accrue dividends, and
such shares shall no longer be deemed to be outstanding and shall have the
status of
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authorized but unissued shares of preferred stock of the Company, undesignated
as to series, and all rights of the holders thereof, as such, as shareholders of
the Company (except the right to receive from the Company the redemption price)
shall cease. Upon surrender in accordance with such notice of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if the
notice shall so state), such shares shall be redeemed by the Company.
(g) VOTING RIGHTS. Except as required under Delaware law, the holders of
shares of Preferred Stock shall not be entitled to any voting rights as
shareholders of the Company except as follows:
(i) The affirmative vote of the holders of at least a majority of the
outstanding shares of Preferred Stock, voting with holders of shares of all
other series of preferred stock affected in the same way as a single class, in
person or by proxy, at a special or annual meeting called for the purpose, or by
written consent in lieu of a meeting, shall be required to amend, repeal or
change any provisions of this Certificate of Designations in any manner which
would adversely affect, alter or change the powers, preferences or special
rights of the Preferred Stock and any such securities affected in the same way;
provided, however, that the creation, authorization or issuance of any other
class or series of capital stock or the increase or decrease in the amount of
authorized capital stock of any such class or series or of the Preferred Stock,
shall not require the consent of the holders of the Preferred Stock and shall
not be deemed to affect adversely, alter or change the powers, preferences and
special rights of the shares of Preferred Stock. With respect to any matter on
which the holders are entitled to vote as a separate class, each share of
Preferred Stock shall be entitled to one vote.
(ii) If at any time the equivalent of six quarterly dividends payable on
the shares of Preferred Stock are accrued and unpaid (whether or not consecutive
and whether or not declared), the holders of all outstanding shares of Preferred
Stock and any Parity Stock or Senior Stock having similar voting rights then
exercisable, voting separately as a single class without regard to series, shall
be entitled to elect at the next annual meeting of the shareholders of the
Company two directors to serve until all dividends accumulated and unpaid on any
such voting shares have been paid or declared and funds set aside to provide for
payment in full. In exercising any such vote, each outstanding share of
Preferred Stock shall be entitled to one vote.
(h) OPTIONAL CONVERSION. (i) Each share of Preferred Stock shall be
convertible at any time and from time to time at the option of the holder
thereof into fully paid and nonassessable shares of Common Stock. The number of
shares of Common Stock deliverable upon conversion of a share of Preferred
Stock, adjusted as hereinafter provided, is referred to herein as the
"Conversion Ratio". The Conversion Ratio as of the Initial Issuance Date shall
be 1.3559 and shall equal the ratio the numerator of which shall be the
Liquidation Preference and the denominator of which shall be the Conversion
Price. The Conversion Price shall be $36.875, subject to adjustment from time to
time as provided in paragraph (j).
(ii) Conversion of shares of Preferred Stock may be effected by any holder
upon the surrender to the Company at the principal office of the Company or at
the office of the transfer agent for the Preferred Stock (the "Transfer Agent"),
as may be designated by
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the Board of Directors of the Company, of the certificate or certificates for
such shares of Preferred Stock to be converted accompanied by a written notice
stating that such holder elects to convert all or a specified whole number of
such shares in accordance with the provisions of this paragraph (h) and
specifying the name or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. In case such notice shall
specify a name or names other than that of such holder, such notice shall be
accompanied by payment of all transfer taxes payable upon the issuance of shares
of Common Stock in such name or names. Other than such taxes, the Company shall
pay any documentary, stamp or similar issue or transfer taxes that may be
payable in respect of any issuance or delivery of shares of Common Stock upon
conversion of shares of Preferred Stock pursuant hereto. As promptly as
practicable after the surrender of such certificate or certificates and the
receipt of such notice relating thereto and, if applicable, payment of all
required transfer taxes (or the demonstration to the satisfaction of the Company
that such taxes have been paid), the Company shall deliver or cause to be
delivered (x) certificates representing the number of validly issued, fully paid
and nonassessable full shares of Common Stock to which the holder (or the
holder's transferee) of shares of Preferred Stock being converted shall be
entitled and (y) if less than the full number of shares of Preferred Stock
evidenced by the surrendered certificate or certificates is being converted, a
new certificate or certificates, of like tenor, for the number of shares
evidenced by such surrendered certificate or certificates less the number of
shares being converted. Such conversion shall be deemed to have been made at the
close of business on the date of giving such notice and of such surrender of the
certificate or certificates representing the shares of Preferred Stock to be
converted so that the rights of the holder thereof as to the shares being
converted shall cease except for the right to receive shares of Common Stock and
accrued and unpaid dividends with respect to the shares of Preferred Stock being
converted, in each case in accordance herewith, and the person entitled to
receive the shares of Common Stock shall be treated for all purposes as having
become the record holder of such shares of Common Stock at such time.
(iii) If a holder of shares of Preferred Stock exercises conversion rights
under paragraph (h)(i), upon delivery of the shares for conversion, such shares
shall cease to accrue dividends pursuant to paragraph (d) as of the end of the
day immediately preceding the date of such delivery, but such shares shall
continue to be entitled to receive all accrued dividends which such holder is
entitled to receive through the last preceding Dividend Payment Date unless such
conversion follows a call for redemption by the Company in which case pro rata
dividends shall also be payable through the date of such call. Any such accrued
and unpaid dividends shall be payable by the Company as and when such dividends
are paid to any remaining holders or, if none, on the date which would have been
the next succeeding Dividend Payment Date had there been remaining holders or
such later time at which the Company believes it has adequate available capital
under applicable law to make such a payment. Notwithstanding the foregoing,
shares of Preferred Stock surrendered for conversion (other than after notice of
redemption has been given with respect to such shares) after the close of
business on any record date for the payment of dividends declared and prior to
the opening of business on the Dividend Payment Date relating thereto must be
accompanied by a payment in cash or common stock (pursuant to the provisions of
paragraph (l)) of an amount equal to the dividend declared in respect of such
shares.
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(iv) In case any shares of Preferred Stock are to be redeemed pursuant to
paragraph (f), such right of conversion shall cease and terminate, as to the
shares of Preferred Stock to be redeemed, at the close of business on the
Business Day immediately preceding the date fixed for redemption unless the
Company shall default in the payment of the redemption price therefor, as
provided herein.
(v) In connection with the conversion of any shares of Preferred Stock, no
fractions of shares of Common Stock shall be required to be issued, but in lieu
thereof, the Company may pay a cash adjustment in respect of such fractional
interest in an amount equal to such fractional interest multiplied by the
Conversion Price. If more than one share of Preferred Stock shall be surrendered
for conversion by the same holder at the same time, the number of full shares of
Common Stock issuable on conversion thereof shall be computed on the basis of
the total number of shares of Preferred Stock so surrendered.
(vi) The Company shall at all times reserve and keep available, free from
preemptive rights, for issuance upon the conversion of shares of Preferred Stock
such number of its authorized but unissued shares of Common Stock as will from
time to time be sufficient to permit the conversion of all outstanding shares of
Preferred Stock. Prior to the delivery of any securities which the Company shall
be obligated to deliver upon conversion of the Preferred Stock, the Company
shall comply with all applicable federal and state laws and regulations which
require action to be taken by the Company. All shares of Common Stock delivered
upon conversion of the Preferred Stock will upon delivery be duly and validly
issued and fully paid and nonassessable, free of all liens and charges and not
subject to any preemptive rights.
(i) MANDATORY CONVERSION. (i) At any time on or after August 15, 2003, the
Company may cause the Preferred Stock, in whole or from time to time in part, to
be automatically converted into that number of shares of Common Stock per share
of Preferred Stock equal to the Liquidation Preference per share of Preferred
Stock divided by the then prevailing Conversion Price if the Current Market
Value of the Common Stock equals or exceeds 120% of the then prevailing
Conversion Price for at least 20 trading days in any consecutive 30-day trading
period, including the last trading day of such 30-day period, ending on the
trading day prior to the issuance of the press release announcing the mandatory
conversion referred to in paragraph (i)(ii).
(ii) To exercise a mandatory conversion, the Company shall issue a press
release announcing such mandatory conversion prior to the opening of business on
the first trading day following any date on which the conditions described in
paragraph (i)(i) are met. The Company shall give notice of the mandatory
conversion by mail or by publication (with subsequent prompt notice by mail) to
the holders of the Preferred Stock not more than four Business Days after the
date of the press release announcing the Company's intention to convert the
Preferred Stock. The conversion date will be a date selected by the Company,
which date shall not be less than 30 nor more than 60 days after the date on
which the Company issues such press release.
(iii) In addition to any information required by applicable law or
regulation, notice of mandatory conversion shall state, as appropriate, (a) the
Preferred Stock conversion date, (b) the number of shares of Common Stock to be
issued upon
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conversion of each share of Preferred Stock, (c) the number of shares of
Preferred Stock to be converted (and, if fewer than all of the shares of
Preferred Stock are to be converted the number of shares of Preferred Stock to
be converted from such holder), (d) the place(s) where the certificates
representing shares of Preferred Stock are to be surrendered for delivery of
certificates representing shares of Common Stock and (e) that dividends on the
shares to be converted will cease to accumulate on such mandatory conversion
date.
(iv) The dividend payment with respect to a share of Preferred Stock called
for mandatory conversion on a date during the period from the close of business
on any Record Date for the payment of dividends to the close of business on the
corresponding Dividend Payment Date shall be payable on such Dividend Payment
Date to the record holder of such share on such Record Date if such share has
been converted after such Record Date and prior to such Dividend Payment Date.
Except as provided in the immediately preceding sentence with respect to a
mandatory conversion, no payment or adjustment will be made upon conversion of
shares of Preferred Stock for accumulated and unpaid dividends or for dividends
with respect to the Common Stock issued upon such conversion.
(v) On and after the mandatory conversion date, dividends will cease to
accrue on shares of Preferred Stock and all rights of holders of such shares
will terminate except for the right to receive the shares of Common Stock
issuable upon conversion thereof.
(vi) The Company may not authorize or make any mandatory conversion unless,
prior to giving the conversion notice, all accumulated and unpaid dividends on
the Preferred Stock for the complete Dividend Periods ended prior to the date of
such conversion notice shall have been paid in cash or Common Stock. In the
event of partial mandatory conversions of the Preferred Stock, the shares to be
converted will be determined pro rata or by lot, as determined by the Company,
provided that the Company may convert all shares held by holders of fewer than
100 shares of Preferred Stock (or by holders that would hold fewer than 100
shares of Preferred Stock following such conversion) prior to the Company's
conversion of other shares of Preferred Stock.
(j) CONVERSION PRICE ADJUSTMENTS. (i) The Conversion Price shall be subject
to adjustment from time to time as follows:
(A) Stock Splits and Combinations. In case the Company shall at any time or
from time to time after the Initial Issuance Date (a) pay a dividend in shares
of Common Stock to holders of Common Stock, (b) make a distribution in shares of
Common Stock to holders of Common Stock, (c) subdivide or split the outstanding
shares of Common Stock, (d) combine or reclassify the outstanding shares of
Common Stock into a smaller number of shares or (e) issue by reclassification of
the shares of Common Stock any shares of capital stock of the Company, then, and
in each such case, the Conversion Price in effect immediately prior to such
event or the record date therefor, whichever is earlier, shall be adjusted so
that the holder of any shares of Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common Stock or
other securities of the Company which such holder would have owned or have been
entitled to receive after the occurrence of any of the events described above,
had such shares of Preferred Stock been surrendered for conversion immediately
prior to the
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occurrence of such event or the record date therefor, whichever is earlier. An
adjustment made pursuant to this subparagraph (A) shall become effective at the
close of business on the day upon which such corporate action becomes effective.
Such adjustment shall be made successively whenever any event listed above shall
occur.
(B) Issuance of Rights or Warrants. In case the Company shall issue to all
holders of Common Stock rights or warrants expiring within 45 days entitling
such holders to subscribe for or purchase Common Stock at a price per share less
than the Current Market Price (as defined below), the Conversion Price in effect
immediately prior to the close of business on the record date fixed for
determination of shareholders entitled to receive such rights or warrants shall
be reduced by multiplying such Conversion Price by a fraction, the numerator of
which is the sum of the number of shares of Common Stock outstanding at the
close of business on such record date and the number of shares of Common Stock
that the aggregate offering price of the total number of shares of Common Stock
so offered for subscription or purchase would purchase at such Current Market
Price and the denominator of which is the sum of the number of shares of Common
Stock outstanding at the close of business on such record date and the number of
additional shares of Common Stock so offered for subscription or purchase. For
purposes of this subparagraph (B), the issuance of rights or warrants to
subscribe for or purchase securities convertible into Common Stock shall be
deemed to be the issuance of rights or warrants to purchase the Common Stock
into which such securities are convertible at an aggregate offering price equal
to the sum of the aggregate offering price of such securities and the minimum
aggregate amount (if any) payable upon conversion of such securities into shares
of Common Stock. Such adjustment shall be made successively whenever any such
event shall occur.
(C) Distribution of Indebtedness, Securities or Assets. In case the
Company shall distribute to all holders of Common Stock (whether by dividend or
in a merger, amalgamation or consolidation or otherwise) evidences of
indebtedness, shares of capital stock of any class or series, other securities,
cash or assets (other than Common Stock, rights or warrants referred to in
subparagraph (B) above or a dividend payable exclusively in cash and other than
as a result of a Fundamental Change (as defined below)), the Conversion Price in
effect immediately prior to the close of business on the record date fixed for
determination of shareholders entitled to receive such distribution shall be
reduced by multiplying such Conversion Price by a fraction, the numerator of
which is the Current Market Price on such record date less the fair market value
(as determined by the Board of Directors of the Company, whose determination in
good faith shall be conclusive) of the portion of such evidences of
indebtedness, shares of capital stock, other securities, cash and assets so
distributed applicable to one share of Common Stock and the denominator of which
is the Current Market Price. Such adjustment shall be made successively whenever
any such event shall occur.
In respect of a dividend or other distribution of shares of capital stock
of any class or series, or similar equity interests, of or relating to a
subsidiary or other business unit of the Company (a "Spin-Off"), the adjustment
to the Conversion Price pursuant to this paragraph (C) shall occur at the
earlier of (i) 20 trading days after the effective date of the Spin-Off and (ii)
the initial public offering of securities pertaining to the subsidiary or
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other business unit to which the Spin-Off relates, if that initial public
offering is effected simultaneously with such Spin-Off.
(D) Fundamental Changes. In case any transaction or event (including,
without limitation, any merger, consolidation, tender or exchange offer,
reclassification, compulsory share exchange or liquidation) shall occur in which
all or substantially all outstanding shares of Common Stock are converted into
or exchanged for stock, other securities, cash or assets (each, a "Fundamental
Change"), the holder of each share of Preferred Stock outstanding immediately
prior to the occurrence of such Fundamental Change (if any remain outstanding
after such Fundamental Change) shall have the right upon any subsequent
conversion to receive (but only out of legally available funds, to the extent
required by applicable law) the kind and amount of stock, other securities, cash
and assets that such holder would have received if such share had been converted
immediately prior to such Fundamental Change.
(ii) Anything in this paragraph (j) to the contrary notwithstanding, the
Company shall not be required to give effect to any adjustment in the Conversion
Price unless and until the net effect of one or more adjustments (each of which
shall be carried forward until counted toward adjustment), determined as above
provided, shall have resulted in a change of the Conversion Price by at least
1%, and when the cumulative net effect of more than one adjustment so determined
shall be to change the Conversion Price by at least 1%, such change in the
Conversion Price shall thereupon be given effect. In the event that, at any time
as a result of the provisions of this paragraph (j), the holder of shares of
Preferred Stock upon subsequent conversion shall become entitled to receive any
shares of capital stock of the Company other than Common Stock, the number of
such other shares so receivable upon conversion of shares of Preferred Stock
shall thereafter be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions contained herein.
(iii) There shall be no adjustment of the Conversion Price in case of the
issuance of any stock of the Company in a merger, reorganization, acquisition,
reclassification, recapitalization or other similar transaction except as set
forth in this paragraph (j).
(iv) In any case in which this paragraph (j) requires that an adjustment as
a result of any event become effective from and after a record date, the Company
may elect to defer until after the occurrence of such event (A) issuing to the
holder of any shares of Preferred Stock converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion over and above the shares issuable on the basis of
the conversion price in effect immediately prior to adjustment and (B) paying to
such holder any amount in cash in lieu of a fractional share of Common Stock.
(v) If the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend or other distribution,
and shall thereafter and before the distribution to shareholders thereof legally
abandon its plan to pay or deliver such dividend or distribution, then
thereafter no adjustment in the number of shares of Common Stock issuable upon
exercise of the right of conversion granted by this paragraph (j) or in the
Conversion Price then in effect shall be required by reason of the taking of
such record.
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(vi) The Board of Directors of the Company shall have the power to resolve
any ambiguity or correct any error in this paragraph (j), and its action in so
doing shall be final and conclusive.
(k) CHANGE IN CONTROL PUT RIGHT. (i) If a Change in Control occurs with
respect to the Company, each holder of shares of Preferred Stock (if any shares
of Preferred Stock remain outstanding thereafter) shall have the right to
require the Company to purchase all or any part of such holder's shares of
Preferred Stock at a purchase price in cash equal to 100% of the Liquidation
Preference of such shares, plus all accumulated and unpaid dividends on such
shares to the date of purchase. The Company shall have the option to pay for
such shares of Preferred Stock in shares of Common Stock valued at 95% of the
Average Market Value. Within 30 days following such Change in Control, the
Company shall mail a notice to each holder of shares of Preferred Stock (if any
remain outstanding thereafter) describing the transaction or transactions that
constitute such Change in Control and offering to purchase such holder's shares
of Preferred Stock on the date specified in such notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed.
(ii) The Company shall comply with the requirements of Rule 14e-1 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any other
securities laws and regulations to the extent such laws and regulations are
applicable in connection with the purchase of Preferred Stock as a result of a
Change in Control with respect to the Company. To the extent that the provisions
of any securities laws or regulations conflict with any of the provisions of
this paragraph (k), the Company shall comply with the applicable securities laws
and regulations and shall be deemed not to have breached its obligations under
this paragraph (k).
(iii) On the date scheduled for payment of the shares of Preferred Stock
tendered to the Company for repurchase as provided in this paragraph (k), the
Company shall, to the extent lawful, (a) accept for payment all shares of
Preferred Stock properly tendered, (b) deposit with the Transfer Agent an amount
equal to the purchase price of the shares of Preferred Stock so tendered and (c)
deliver or cause to be delivered to the Transfer Agent shares of Preferred Stock
so accepted together with an officers' certificate stating the aggregate
Liquidation Preference of the shares of Preferred Stock being purchased by the
Company. The Transfer Agent shall promptly mail or deliver to each holder of
shares of Preferred Stock so tendered the applicable payment for such shares of
Preferred Stock, and the Transfer Agent shall promptly countersign and mail or
deliver, or cause to be transferred by book-entry, to each holder new shares of
Preferred Stock equal in Liquidation Preference to any unpurchased portion of
the shares of Preferred Stock surrendered, if any. The Company shall publicly
announce the results of its offer on or as soon as practicable after the payment
date for the purchase of shares of Preferred Stock in connection with a Change
in Control of the Company.
(iv) The Company shall not be required to make an offer to purchase any
shares of Preferred Stock upon the occurrence of a Change in Control of the
Company if a third party makes that offer in the manner, at the times and
otherwise in compliance with the requirements described in this paragraph (k)
and purchases all shares of Preferred Stock validly tendered and not withdrawn.
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(v) The right of the holders of shares of Preferred Stock described in this
paragraph (k) shall be subject to the obligation of the Company to:
(a) repay its debt obligations in full under its corporate credit
facility; and
(b) offer to purchase and purchase all of its debt securities and
outstanding shares of Senior Stock that have been tendered for purchase in
connection with a Change in Control of the Company.
In addition, the right of the holders of shares of Preferred Stock
described in this paragraph (k) shall be subject to the repurchase or repayment
of the Company's future indebtedness and Senior Stock, which the Company shall
be required to repurchase or repay in connection with a Change in Control of the
Company.
When the Company shall have satisfied the obligations set forth above in
this subparagraph (v) and, subject to the legal availability of funds for this
purpose, the Company shall purchase all shares of Preferred Stock tendered for
purchase by the Company upon a Change in Control of the Company pursuant to this
paragraph (k).
(l) METHOD OF PAYMENTS. (i) Subject to the restrictions set forth herein,
the Company may generally make any payments due on the Preferred Stock:
(a) in cash;
(b) by delivery of Common Stock; or
(c) through any combination of cash and Common Stock.
(ii) If the Company elects to make any such payment, or any portion
thereof, in shares of Common Stock, such shares shall be valued for such
purpose, in the case of any dividend payment, or portion thereof, at 95% of the
Average Market Value.
(iii) The Company shall give the holders of the Preferred Stock notice as
to whether each payment shall be made (a) in cash, (b) in shares of Common
Stock, or (c) if such payment shall be made in a combination of cash and shares
of Common Stock, the portion of such payment that shall be made in cash and the
portion that shall be made in shares of Common Stock, in each case ten (10)
trading days prior to (a) in the case of a payment of any dividend, the Record
Date for such dividend, or (b) in the case of any other payment, the date of
such payment.
(iv) The Company shall make each dividend payment on the Preferred Stock in
cash, except to the extent the Company shall have elected to make all or any
portion of such payment in shares of Common Stock.
(v) No fractional shares of Common Stock will be delivered to the holders
of the Preferred Stock, but the Company shall instead pay a cash adjustment to
each holder that would otherwise be entitled to a fraction of a share of Common
Stock. The amount of such cash adjustment shall be determined based on the
proceeds received by the Transfer Agent from the sale of that number of shares
of Common Stock which the Company shall deliver to the Transfer Agent for such
purpose, equal to the aggregate of all such fractions (rounded up to the nearest
whole share). The Transfer Agent is authorized and directed to sell such shares
of Common Stock at the best available prices and distribute the proceeds to the
holders of such shares of Preferred Stock in proportion to their respective
interests
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therein. The Company shall pay the expenses of the Transfer Agent with respect
to such sale, including brokerage commissions. Any portion of any such payment
that is declared and not paid through the delivery of shares of Common Stock
shall be paid in cash.
(vi) Shares of Preferred Stock issued and reacquired shall, upon compliance
with the applicable requirements of law, have the status of authorized but
unissued shares of Preferred Stock undesignated as to series and may with any
and all other authorized but unissued shares of Preferred Stock be designated or
redesignated and issued, as part of any series of Preferred Stock.
(m) CERTAIN DEFINITIONS. As used herein, the following terms shall have the
following meanings, unless the context otherwise requires:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Average Market Value" of the Common Stock means the arithmetic average of
the Current Market Value of the Common Stock for the five trading days ending on
the second Business Day prior to (a) in the case of the payment of any dividend,
the Record Date for such dividend and (b) in the case of any other payment, the
date of such payment.
"Business Day" means any day other than a Saturday, Sunday or a United
States federal holiday.
"Capital Stock" means: (1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock; (3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and (4) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Change in Control" means, with respect to the Company, the occurrence of
any of the following: (i) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole, to any "person" (as such term is
used in Section 13(d)(3) of the Exchange Act) other than a Principal or a
Related Party of a Principal; (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company; (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above), other than the
Principals and their Related Parties, becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 and Rule 13d-5 under the
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Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition), directly or indirectly, of more than 50% of the
Voting Stock of the Company (measured by voting power rather than number of
shares); provided that transfers of Equity Interests in the Company between or
among the beneficial owners of the Company's Equity Interests and/or Equity
Interests in Crown Castle UK Holdings Limited, in each case as of June 26, 2000,
shall not be deemed to cause a Change of Control under this clause so long as no
single Person together with its Affiliates acquires a beneficial interest in
more of the Voting Stock of the Company than is at the time collectively
beneficially owned by the Principals and their Related Parties; (iv) the first
day on which a majority of the members of the board of directors of the Company
are not Continuing Directors; or (v) the Company consolidates with, or merges
with or into, any Person, or any Person consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction in which any of
the outstanding Voting Stock of the Company is converted into or exchanged for
cash, securities or other property, other than any such transaction where: (a)
the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance); or (b) the
Principals and their Related Parties own a majority of such outstanding shares
after such transaction.
"Continuing Directors" means, as of any date of determination, any member
of the board of directors of the Company who: (1) was a member of such board of
directors on August 3, 1999; (2) was nominated for election or elected to such
board of directors with the approval of a majority of the Continuing Directors
who were members of such board of directors at the time of such nomination or
election; or (3) is a designee of a Principal or was nominated by a Principal.
"Current Market Price" means, with respect to any event set forth in
paragraph (j) herein, as applicable, the average of the daily closing prices for
the five consecutive trading days selected by the Board of Directors of the
Company commencing not more than 20 trading days before, and ending not later
than the date of such event and the date immediately preceding the record date
fixed in connection with such event; provided that the Current Market Price of
the Company's Common Stock in connection with a Spin-Off shall mean the average
of the daily closing prices of the Company's Common Stock for the same five
consecutive trading days in determining the Fair Market Value of the securities
being distributed in such Spin-Off; provided further that if an initial public
offering of the securities being distributed in any Spin-Off is to be effected
simultaneously with such Spin-Off, the Current Market Price of the Company's
Common Stock shall mean the closing price of the Company's Common Stock on the
trading day on which the initial public offering price of such securities is
determined.
"Current Market Value" of the Common Stock means the average volume-
weighted daily trading price of the Common Stock as reported on the Nasdaq
National Market or such other SEC recognized national securities exchange or
trading system
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which the Company may from time to time designate upon which the greatest number
of shares of the Common Stock is then listed or traded, for the trading day in
question.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Company is obligated to redeem the Preferred Stock as set
forth in paragraph (f); provided, however, that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a
Change in Control or a sale of assets shall not constitute Disqualified Stock if
the terms of such Capital Stock provide that CCIC may not repurchase or redeem
any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the provisions of paragraph (d).
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Fair Market Value" of the securities to be distributed to the holders of
the Company's Common Stock in connection with a Spin-Off shall mean the average
of the daily closing prices of such securities for the five consecutive trading
days selected by the Company's Board of Directors beginning on the first day of
trading of such securities after the effectiveness of such Spin-Off; provided,
however, that if an initial public offering of the securities being distributed
in any Spin-Off is to be effected simultaneously with such Spin-Off, the Fair
Market Value of such securities shall mean the initial public offering price.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Principals" means Berkshire Fund III, Limited Partnership; Berkshire Fund
IV, Limited Partnership; Berkshire Investors LLC; Berkshire Partners LLC;
Centenial Fund IV, L.P.; Centenial Fund V, L.P.; Centenial Entrepreneurs Fund V,
L.P.; Nassau Capital Partners II, L.P.; and NAS Partners I, L.L.C., and any
Related Party of the foregoing.
"Related Party" with respect to any Principal means: (1) any controlling
stockholder, 80% (or more) owned Subsidiary of such Principal; or (2) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
members, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Principal and/or such other
Persons referred to in the immediately preceding clause (1).
"Spin-Off" is defined in paragraph (j)(i)(C).
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"Subsidiary" means, with respect to any Person: (1) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof); and (2) any partnership: (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person; or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the board of
directors of such Person.
(n) HEADINGS. The headings of the paragraphs of this Certificate of
Designations are for convenience of reference only and shall not define, limit
or affect any of the provisions hereof.
(o) NOTICE. Except as may otherwise be provided for herein, all notices
referred to herein shall be in writing, and all notices hereunder shall be
deemed to have been given upon the earlier of receipt of such notice or three
Business Days after the mailing of such notice if sent by registered mail
(unless first-class mail shall be specifically permitted for such notice under
the terms of this certificate) with postage prepaid, addressed: if to the
Company, to its offices at 510 Bering Drive, Suite 500, Houston, Texas 77057,
Attention: General Counsel, or to an agent of the Corporation designated as
permitted by this certificate, or, if to any holder of the Preferred Stock, to
such holder at the address of such holder of the Preferred Stock as listed in
the stock record books of the Company (which may include the records of any
Transfer Agent for the Preferred Stock); or to such other address as the Company
or holder, as the case may be, shall have designated by notice similarly given.
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IN WITNESS WHEREOF, the Company has caused this certificate to be duly
executed by ________________, its _______________ and attested by
______________, its Secretary, this ___ day of _____________, 2000.
Crown Castle International Corp.
By:__________________________________
Name:
Title:
ATTEST:
By:_____________________________
Name:
Title:
