EXHIBIT 1.2
Crown Castle International Corp.
Common Stock
---------------
International Underwriting Agreement
, 1999
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx Barney International
Xxxxxx Brothers International (Europe)
Credit Suisse First Boston (Europe) Ltd.
Xxxx Xxxxx Limited
As representatives (the "Representatives")
of the several Underwriters
named in Schedule I hereto,
c/o Goldman Sachs International
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Ladies and Gentlemen:
Crown Castle International Corp., a Delaware corporation (the
"Company"), RC Investors Corp., a Delaware corporation, and BC Investors Corp.,
a Delaware corporation (the "Crown Selling Stockholders"), certain executive
officers of the Company named in Schedule II hereto (the "Executive Selling
Stockholders") and certain financial sponsor stockholders, certain other
stockholders who are affiliates of such financial sponsors and certain directors
of the Company named on Schedule II hereto (collectively, the "Sponsor Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 5,540,000 shares (the "Firm Shares") of the Company's Common Stock,
par value $.01 per share ("Stock"). Of the 5,540,000 Firm Shares, the Company
is selling 4,671,533 shares, the Crown Selling Stockholders are selling 396,500
shares, the Executive Selling Stockholders are selling 70,953 shares and the
Sponsor Selling Stockholders are selling 392,014 shares. In addition, the
Executive Selling Stockholders and the Sponsor Selling Stockholders propose,
subject to the terms and conditions stated herein, to grant to the Underwriters
an option to purchase up to an additional 824,511 Shares of Stock on the terms
and for the purposes set forth in Section 2 hereof (the "Optional Shares").
This is to confirm the agreement concerning the purchase by the Underwriters of
the Firm Shares from the Company, the Crown Selling Stockholders, the Executive
Selling Stockholders and the Sponsor Selling Stockholders and of the Optional
Shares, if purchased, from the Executive Selling Stockholders and the Sponsor
Selling Stockholders. The Firm Shares and the Optional Shares, if purchased,
are hereinafter collectively called the "Shares," and the Crown Selling
Stockholders, the Executive Selling Stockholders and the Sponsor Selling
Stockholders are hereinafter collectively referred to as the "Selling
Stockholders".
It is understood and agreed to by all parties that the Company is and the
Selling Stockholders are concurrently entering into an agreement (the "U.S.
Underwriting Agreement") providing for the sale by the Company and the Selling
Stockholders of up to a total of 25,458,043 shares of Stock (the "U.S. Shares"),
including the overallotment option thereunder, through arrangements with certain
underwriters in the United States (the "U.S. Underwriters"), for whom Xxxxxxx,
Xxxxx & Co., Xxxxxxx Xxxxx Barney Inc., Xxxxxx Brothers Inc., Credit Suisse
First Boston Corporation and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated are acting as
representatives. Anything herein or therein to the contrary notwithstanding,
the respective closings under this Agreement and the U.S. Underwriting Agreement
are hereby expressly made conditional on one another. The Underwriters
hereunder and the U.S. Underwriters are simultaneously entering into an
Agreement between U.S. and International Underwriting Syndicates (the "Agreement
between Syndicates") which provides, among other things, for the transfer of
shares of Stock between the two syndicates and for consultation by the Lead
Managers hereunder with Xxxxxxx, Sachs & Co. prior to exercising the rights of
the Underwriters under Section 8 of the U.S. Underwriting Agreement. Two forms
of prospectus are to be used in connection with the offering and sale of shares
of Stock contemplated by the foregoing, one relating to the Shares hereunder and
the other relating to the U.S. Shares. The latter form of prospectus will be
identical to the former except for certain substitute pages as included in the
registration statement and amendments thereto as mentioned below. Except as
used in Sections 2, 3, 4, 11 and 13 herein, and except as the context may
otherwise require, references hereinafter to the Shares shall include all the
shares of Stock which may be sold pursuant to either this Agreement or the U.S.
Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall include
both the U.S. and the international versions thereof.
In addition, this Agreement incorporates by reference certain provisions
from the U.S. Underwriting Agreement (including the related definitions of
terms, which are also used elsewhere herein) and, for purposes of applying the
same, references (whether in these precise words or their equivalent) in the
incorporated provisions to the "Underwriters" shall be to the Underwriters
hereunder, to the "Shares" shall be to the Shares hereunder as just defined, to
"this Agreement" (meaning therein the U.S. Underwriting Agreement) shall be to
this Agreement (except where this Agreement is already referred to or as the
context may otherwise require) and to the representatives of the Underwriters or
to Xxxxxxx, Xxxxx & Co. shall be to the addressees of this Agreement and to
Xxxxxxx Sachs International ("GSI"), and, in general, all such provisions and
defined terms shall be applied mutatis mutandis as if the incorporated
provisions were set forth in full herein having regard to their context in this
Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders hereby make to
the Underwriters the same respective representations, warranties and agreements
as are set forth in Section 1 of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders,
at a purchase price per share of $_________, the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
the aggregate number of Firm Shares to be sold by the Company and each of the
Selling Stockholders as set forth opposite their respective names in Schedule II
hereto by a
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fraction, the numerator of which is the aggregate number of Firm Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto and the denominator of which is the aggregate number of
Firm Shares to be purchased by all of the Underwriters from the Company and all
of the Selling Stockholders hereunder and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Shares as
provided below, each of the Executive Selling Stockholders and each of the
Sponsor Selling Stockholders agrees, severally and not jointly, to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Executive Selling Stockholders and each of
the Sponsor Selling Stockholders, at the purchase price per share set forth in
clause (a) of this Section 2, that portion of the number of Optional Shares as
to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Executive Selling Stockholders and the Sponsor Selling Stockholders, as
and to the extent indicated in Schedule II hereto, hereby grant, severally and
not jointly, to the Underwriters the right to purchase at their election up to
824,511 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering overallotments in the sale of
the Firm Shares. Any such election to purchase Optional Shares shall be made in
proportion to the maximum number of Optional Shares to be sold by each Selling
Stockholder as set forth in Schedule II hereto. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company
and the attorneys-in-fact under the Power of Attorney executed by such Selling
Stockholder, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the attorneys-in-fact otherwise
agree in writing, earlier than two or later than five business days after the
date of such notice.
The Company and the Selling Stockholders shall not be obligated to deliver
any of the Shares to be delivered at the Time of Delivery except upon payment
for all the Shares to be purchased at such Time of Delivery as provided herein.
3. Upon the authorization by GSI of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus and in the forms of International
Agreement among Underwriters and Selling Agreements, which have been previously
submitted to the Company by you. Each Underwriter hereby makes to and with the
Company and the Selling Stockholders the representations and agreements of such
Underwriter as a member of the selling group contained in Sections 3(d) and 3(e)
of the form of Selling Agreements.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Company and the Selling Stockholders to Xxxxxxx, Sachs & Co., for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same-
day) funds to the account specified by the Company and the Custodian, as their
interests may appear, to
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Xxxxxxx, Xxxxx & Co. at least forty-eight hours in advance. The Company will
cause the certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery (as
defined below) with respect thereto at the office of Xxxxxxx, Sachs & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York City time, on ............., 1999, or such other time and
date as Xxxxxxx, Xxxxx & Co. and the Company and may agree upon in writing, and,
with respect to the Optional Shares, 9:30 a.m., New York City time, on the date
specified by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Xxxxxxx, Sachs & Co. and the Attorneys-in-Fact may agree
upon in writing. Such time and date for delivery of the Firm Shares is herein
called the "First Time of Delivery", such time and date for delivery of the Firm
Optional Shares, if not the First Time of Delivery, is herein called the "Second
Time of Delivery", and each such time and date for delivery is herein called a
"Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 of the U.S. Underwriting Agreement,
including the cross-receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 8 of the U.S. Underwriting
Agreement, will be delivered at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and the Shares will
be delivered at the Designated Office, all at each Time of Delivery. A meeting
will be held at the Closing Location at 4:00 p.m., New York City time, on the
New York Business Day next preceding each Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close.
5. The Company hereby makes with the Underwriters the same agreements as
are set forth in Section 6 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
6. The Company, each of the Selling Stockholders, and the Underwriters
hereby agree with respect to certain expenses on the same terms as are set forth
in Section 7 of the U.S. Underwriting Agreement, which Section is incorporated
herein by this reference.
7. Subject to the provisions of the Agreement between Syndicates, the
obligations of the Underwriters hereunder shall be subject, in their discretion,
at each Time of Delivery to the condition that all representations and
warranties and other statements of the Company, and the Selling Stockholders
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all of their
respective obligations hereunder theretofore to be performed, and additional
conditions identical to those set forth in Section 8 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
8. (a) The Company, the Crown Selling Stockholders and the Executive
Selling Stockholders, jointly and severally, shall indemnify and hold harmless
each Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Shares), to which that Underwriter,
officer, employee or
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controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any breach of the representations and warranties of such Crown Selling
Stockholder or Executive Selling Stockholder, as the case may be contained
herein; provided that the indemnity by the Company, the Crown Selling
Stockholders or the Executive Selling Stockholders solely with respect to this
clause (i) shall be several and not joint, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, (iii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, or (iv) any act or failure to act
or any alleged act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Shares or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (ii)
or (iii) above, and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company, the Crown Selling
Stockholders and the Executive Selling Stockholders shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein.
Notwithstanding the foregoing provisions, the indemnity and contribution
obligations of the Crown Selling Stockholders and the Executive Selling
Stockholders shall be subject to the following additional limitations: (i) the
Underwriters shall pursue and satisfy any and all claims arising under this
Agreement or otherwise (collectively, "Claims") by seeking recovery from the
Company prior to pursuing any Claim against the Crown Selling Stockholders and
the Executive Selling Stockholders, and the Underwriters shall thereafter be
entitled to pursue any remaining unsatisfied Claims by seeking recovery from the
Crown Selling Stockholders and the Executive Selling Stockholders only following
the Company's failure to satisfy in full the Claims as a result of the Company's
insolvency, bankruptcy or liquidation; (ii) the aggregate amount of any Selling
Stockholder's indemnity and contribution obligations under this paragraph 8(a)
shall not exceed the net cash proceeds received by such Selling Stockholder from
its sale of Shares in the offering after reduction for (A) taxes, (B)
underwriting commissions and discounts, (C) other fees and expenses incurred by
such Selling Stockholder relating to the offering, including legal and financial
advisory fees, and (D) the aggregate amount of any and all direct and indirect
costs or expenses incurred by such Selling Stockholder in defense or settlement
of any other claim against it relating or attributable to the offering or the
sale of Shares by such Selling Stockholder thereunder, including without
limitation claims under the Act; and (iii) the Crown Selling Stockholders or the
Executive Selling Stockholders shall be liable under this paragraph 8(a) solely
with respect to any untrue statement of material fact contained in the
Registration Statement and the Prospectus which was actually known by such
Selling Stockholder as of the date of the Registration Statement or Prospectus
(or such amendment or supplement thereto) to be untrue, or any omission to state
a material fact which was actually known by such Selling Stockholder as of the
date of the Registration Statement or Prospectus (or such amendment or
supplement thereto) to be necessary to make the statements contained in the
Registration Statement or Prospectus (or such amendment or
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supplement thereto) in the light of the circumstances under which they were
made, not misleading as of the date of the Registration Statement or Prospectus
(or such amendment or supplement thereto). The provisions of this Section 8
shall constitute the sole and exclusive remedy available to the Underwriters
with respect to any claims against the Crown Selling Stockholders or the
Executive Selling Stockholders relating to the offering or sale of Shares by
such Selling Stockholders hereunder.
(b) Each Sponsor Selling Stockholder, severally and not jointly, shall
indemnify and hold harmless each Underwriter, its officers and employees, and
each person, if any, who controls any Underwriter within the meaning of the Act,
from and against any loss, claim, damage or liability, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Shares), to which that Underwriter,
officer, employee or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any breach of the representations and warranties of
such Sponsor Selling Stockholder contained herein, (ii) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (iii) the omission or alleged omission to state in any
Preliminary Prospectus, Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission relates to information provided to
the Company or the Representatives in writing by such Selling Stockholder
specifically for use in the Registration Statement, the Preliminary Prospectus
or the Prospectus or to any breach of the representations and warranties made by
such Sponsor Selling Stockholder incorporated by reference in Section 1 of this
Agreement; and shall reimburse each Underwriter, its officers and employees and
each such controlling person for any legal or other expenses reasonably incurred
by that Underwriter, its officers and employees or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that such Sponsor Selling Stockholder shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein. The
foregoing indemnity agreement constitutes the sole and exclusive remedy
available to the Underwriters with respect to any claims against the Sponsor
Selling Stockholders relating to the offering or sale of Shares by such Sponsor
Selling Stockholders hereunder. No Sponsor Selling Stockholder will be required
to indemnify the Underwriters, their officers and employees, and each person, if
any, who controls any Underwriter within the meaning of the Act pursuant to this
Section 8(b) in an amount in excess of the proceeds received by such person in
respect of all Shares offered and sold by it pursuant to the Registration
Statement.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its officers who sign the Registration Statement, each of
its directors (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Company), and
each person, if any, who controls the Company within
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the meaning of the Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; 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 in good faith reasonably concluded that there may be 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 may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel in the defense of such action,
with the expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred,
provided further that in no event shall the foregoing proviso require the
indemnifying party to bear the fees and expenses of more than one separate
counsel, in addition to local counsel, for each of the following classes of
parties hereto: (i) the Representatives and those other Underwriters and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
under this Section 8, (ii) the Company and its Subsidiaries, (iii) the
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Crown Selling Stockholders, (iv) the Executive Selling Stockholders and (v) the
Sponsor Selling Stockholders. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment to the extent provided in this Section 8.
(e) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient (other than by reason of the exceptions
provided therein) to hold harmless an indemnified party under Section 8(a), 8(b)
or 8(c) in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company, the Crown
Selling Stockholders, the Executive Selling Stockholders and the Sponsor Selling
Stockholders on the one hand and the Underwriters on the other from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the Crown Selling Stockholders, the Executive Selling
Stockholders and the Sponsor Selling Stockholders on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company, the Crown Selling Stockholders, the Executive Selling
Stockholders or the Sponsor Selling Stockholders, on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by the
Company, the Crown Selling Stockholders, the Executive Selling Stockholders or
the Sponsor Selling Stockholders, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Shares under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Crown Selling
Stockholders or the Executive Selling Stockholders and the Sponsor Selling
Stockholders or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Crown Selling Stockholders, the
Executive Selling Stockholders and the Sponsor Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8 were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein.
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The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 8 shall be deemed to include, for purposes of this Section 8(e),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No Selling Stockholder will be
required to contribute any amount in excess of the proceeds received by such
person in respect of all Shares offered and sold by it pursuant to the
Registration Statement and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(e) are several in proportion to their respective underwriting
obligations and not joint.
(f) As used herein, the phrase "actual knowledge" means, with respect to
any natural person, the actual knowledge of such person and, with respect to any
other person, the actual knowledge of any natural person exercising control
(whether by ownership or management) over such person, and shall not imply any
duty to investigate or be deemed to include any knowledge that might have become
actually known following investigation. The phrase "actually known" shall have
a correlative meaning.
(g) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company and the Selling Stockholders shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
9
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter or the Company or the Selling Stockholders, except for
the expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company and each of
the Selling Stockholders pro rata (based on the number of Shares to be sold by
the Company and such Selling Stockholder hereunder) will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
GSI, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by GSI. on behalf of
10
you as the representatives; and in all dealings with any Selling Stockholder
hereunder, GSI and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling Stockholder
made or given by any or all of the Attorneys-in-Fact for such Selling
Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwrites in care of GSI, Peterborough Court,
000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Equity Capital Markets,
telex No. 94012165, facsimile transmission No. (071) 774-1550; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8 (d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by GSI upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof. The Company and the Selling
Stockholders shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of the Underwriters by any of the
Representatives and the Company and the Underwriters shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf
of the Selling Stockholders by their respective Custodians.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, United States of America, without giving
effect to any provisions relating to conflicts of law.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of International Agreement among Underwriters, the form of which
shall be submitted to the Company and the Selling Stockholders for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
11
Any person executing and delivering this Agreement as attorney-in-fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
attorney-in-fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such attorney-in-fact to take such
action.
Very truly yours,
Crown Castle International Corp.
By:
----------------------------------
Name:
Title:
RC Investors Corp.
BC Investors Corp.
Xxx X. Xxxxxx, Xx.
Xxxxx X. Xxx
Xxxxxxx X. Xxxxx, III
Xxxx X. Xxxx
Xxxx Xxxx
Xxxxxx X. Xxxxx
By:
----------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of each of
the Crown Selling Stockholders and Executive
Selling Stockholders named in Schedule II to this
Agreement.
12
Xxxxxx X. XxXxxxxx
Berkshire Fund III, A Limited Partnership
Berkshire Fund IV, Limited Partnership
Berkshire Investors LLC
Candover Investments, plc
Candover (Trustees) Limited
Candover Partners Limited
Centennial Fund IV, L.P.
NAS Partners I, L.L.C.
American Home Assurance Company
Xxx, Richwhite Communications Limited
Harvard Private capital Holdings, Inc.
New York Life Insurance Company
PNC Venture Corp.
Prime VIII, L.P.
By:
----------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of each of
the Sponsor Selling Stockholders named in Schedule
II to this Agreement.
Accepted as of the date hereof
Xxxxxxx Xxxxx International
By:
----------------------------------
Xxxxxxx Xxxxx Barney International
By:
----------------------------------
Name:
title:
----------------------------------
On behalf of each of the Underwriters
13
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ------------------
Xxxxxxx Xxxxx International.................................................
Xxxxxxx Xxxxx Barney International..........................................
Xxxxxx Brothers International (Europe)......................................
Credit Suisse First Boston (Europe) Ltd.....................................
Xxxx Xxxxx Limited..........................................................
Total............................................................. 5,540,000 824,511
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SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
The Company................................................................. 4,671,533 0
The Crown Selling Stockholders(a):
RC Investors Corp...................................................... 210,750 0
BC Investors Corp...................................................... 185,750 0
The Executive Selling Stockholders(b):
Xxx X. Xxxxxx, Xx...................................................... 36,272 95,147
Xxxxx X. Xxx........................................................... 14,690 38,534
Xxxxxxx X. Xxxxx, III.................................................. 9,252 24,269
Xxxx X. Xxxx........................................................... 3,890 10,205
Xxxx Xxxx.............................................................. 6,605 17,327
Xxxxxx X. Xxxxx........................................................ 9,244 24,249
The Sponsor Selling Stockholders(c):
Xxxxxx X. XxXxxxxx..................................................... 1,326 3,478
Berkshire Fund III, A Limited Partnership.............................. 40,983 64,125
Berkshire Fund IV, Limited Partnership................................. 87,380 136,721
Berkshire Investors LLC................................................ 6,300 9,858
Candover Investments, plc.............................................. 15,642 24,475
Candover (Trustees) Limited............................................ 1,399 2,189
Candover Partners Limited.............................................. 59,046 92,388
Centennial Fund IV, L.P................................................ 66,060 103,363
Nassau Capital Partners II, L.P........................................ 33,904 53,049
NAS Partners I, L.L.C.................................................. 211 330
American Home Assurance Company........................................ 18,629 29,148
Xxx, Richwhite Communications Limited.................................. 18,761 29,354
Harvard Private Capital Holdings, Inc.................................. 16,276 25,468
New York Life Insurance Company........................................ 7,120 11,140
PNC Venture Corp....................................................... 13,445 21,039
Prime VIII, L.P........................................................ 5,532 8,655
------------- --------------
Total.................................................................. 5,540,000 824,511
============= ==============
(a) The Crown Selling Stockholders are represented by Xxxxxxxxxxx &
Xxxxxxxx LLP, 0000 Xxxxxx Xxxxxxxx, Xxxxxxxxxx, XX 00000, and have appointed E.
Xxxxx Xxxx and Xxxxxx X. Xxxxxxxxxx and each of them, as the Attorneys-in-Fact
for each such Crown Selling Stockholder.
(b) The Executive Selling Stockholders are represented by Xxxxx, Xxxxxx &
Xxxxx, L.L.P., Two Xxxxx Center, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX
00000 and have appointed E. Xxxxx Xxxx and Xxxxxx X. Xxxxxxxxxx and each of
them, as the Attorneys-in-Fact for each such Executive Selling Stockholder.
15
(c) The Sponsor Selling Stockholders are represented by Xxxxxxxx, Xxxxxxx &
Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and have appointed Xxxx
Xxxxxxxxx and Xxxxx X. Xxxxxxxx and each of them, as the Attorneys-in-Fact for
each such Sponsor Selling Stockholder.
16
