EXHIBIT 1.2
6,250,000 SHARES
CROWN CASTLE INTERNATIONAL CORP.
COMMON STOCK
INTERNATIONAL UNDERWRITING AGREEMENT
------------------------------------
August __, 1998
Xxxxxx Brothers International (Europe)
Credit Suisse First Boston (Europe) Limited
Xxxxxxx Sachs International
Xxxxx Xxxxxx Inc.
As Lead Managers of the several
International Managers named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Crown Castle International Corp., a Delaware corporation (the
"Company") proposes to sell an aggregate of 6,250,000 shares (the "International
Stock") of the Company's Common Stock, par value $.01 per share (the "Common
Stock"). This is to confirm the agreement concerning the purchase of the
International Stock from the Company by the International Managers.
It is understood by all parties that the Company, Xxxxxx X. Crown,
Xxxxxxx X. Crown, Xxxxxx X. Crown and PNC Bank, Delaware, Trustees of the Xxxxxx
X. Crown Grantor Retained Annuity Trust and Xxxxxxx X. Crown and PNC Bank,
Delaware, Trustees of the Xxxxxxx X. Crown Grantor Retained Annuity Trust
(collectively, the "Crown Selling Stockholders"), the Executive Selling
Stockholders, the Employee Selling Stockholders and the Sponsor Selling
Stockholders (each as defined in the U.S. Underwriting Agreement) are
concurrently entering into an agreement dated the date hereof (the "U.S.
Underwriting Agreement") providing for the sale by the Company and the Crown
Selling Stockholders of an aggregate of 25,000,000 shares of Common Stock (the
"Firm Stock") through arrangements with certain underwriters inside the United
States and Canada (the "U.S. Underwriters"), for whom Xxxxxx Brothers Inc.,
Credit Suisse First Boston Corporation, Xxxxxxx, Sachs & Co. and Xxxxx Xxxxxx,
Inc. are acting as Representatives. In addition, the Executive Selling
Stockholders, the Employee Selling Stockholders and the Sponsor Selling
Stockholders propose to grant to the U.S. Underwriters an option under the U.S.
Underwriting Agreement to purchase up to an additional 4,687,500 shares of
Common Stock (the "Option Stock" and, together with the Firm Stock, the "U.S.
Stock") on the terms and for the purposes set forth in Section 4 of the U.S.
Underwriting Agreement. The International Managers and the U.S. Underwriters
simultaneously are entering into an agreement between the U.S. and international
underwriting syndicates (the
"Agreement Between U.S. Underwriters and International Managers") which provides
for, among other things, the transfer of shares of Common Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Common Stock contemplated by the foregoing, one
relating to the U.S. Stock and the other relating to the International Stock.
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 referred to below. Except as used in Sections 2, 3, 4, 9, 10 and 11
herein, and except as the context may otherwise require, references herein to
the Stock shall include all the shares of Common 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 international and the
U.S. versions thereof.
1. Representations, Warranties And Agreements Of The Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 and any amendments
thereto with respect the Stock has (i) been prepared by the Company in
conformity with the requirements of the United States Securities Act
of 1933 (the "Securities Act") and the rules and regulations (the
"Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under
the Securities Act. Copies of such registration statement and the
amendments thereto have been delivered by the Company to you as the
lead managers (the "Lead Managers") of the International Managers. As
used in this Agreement, "Effective Time" means the date and the time
as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereto, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Lead Managers
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the
Effective Time, including all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations in accordance with Section 5 hereof and deemed
to be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations
and including any registration statement registering additional shares
of Common Stock filed with the Commission pursuant to Rule 462(b) of
the Rules and Regulations; and "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to paragraph
(1) or (4) of Rule 424(b) of the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use
of any Preliminary Prospectus.
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(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to
the Company through the Lead Managers by or on behalf of any
International Manager specifically for inclusion therein.
(c) The industry-related and tower-related data and estimates
included in the Prospectus are based on or derived from sources which
the Company believes to be reliable and accurate.
(d) The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of Delaware with all
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration
or qualification, except where the failure so to register or qualify
or to be in good standing would not have a material adverse effect on
the condition (financial or other), business, prospects, properties or
results of operations of the Company, Crown Communication, Inc.
("CCI"), Crown Network Systems, Inc. ("Network"), Crown Mobile
Systems, Inc. ("Mobile"), TEA Group Incorporated ("TEA"), Spectrum
Site Management Corporation ("Spectrum"), TeleStructures, Inc.
("TeleStructures"), Crown Castle International Corp. de Puerto Rico
("CCIC (PR)"), Crown Communication New York, Inc. ("CCNY") and Castle
Transmission Services (Holdings) Ltd. ("CTSH"), Castle Transmission
International, Ltd. ("CTI") and Castle Transmission (Finance) Plc
("CTF" and, together with CCI, Network, Mobile, TEA, Spectrum,
TeleStructures, CCIC (PR), CCNY, CTSH, CTI and CTF, the
"Subsidiaries") taken as a whole (a "Material Adverse Effect").
(e) None of the subsidiaries of the Company (other than CCI and,
following the consummation of the transactions contemplated hereby,
CTI (collectively, the "Significant Subsidiaries")) is a "significant
subsidiary," as such term is defined in Rule 405 of the Rules and
Regulations.
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(f) CTI is a corporation duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation with all
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly registered and qualified to conduct its business in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing would not have a Material Adverse Effect.
(g) As of the Delivery Date (as defined), the Company will have
an authorized capitalization as set forth in the Prospectus, and all
of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Prospectus;
and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and (except for directors' qualifying
shares and except as set forth in the Registration Statement
(including the exhibits thereto) with respect to shares subject to
liens under the Company's Senior Credit Facility) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(h) The unissued shares of the Stock to be issued and sold by
the Company to the International Managers hereunder and to the U.S.
Underwriters under the U.S. Underwriting Agreement have been duly and
validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully
paid and non-assessable; and the Stock will conform to the description
thereof contained in the Prospectus.
(i) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement.
(j) The application for the inclusion of the Stock on the NASDAQ
National Market System has been approved, subject only to official
notice of issuance and evidence of satisfactory distribution.
(k) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the International Managers, constitutes the valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time
in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether in a proceeding in equity or at
law).
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(l) The execution, delivery and performance of this Agreement
and the U.S. Underwriting Agreement by the Company and the
consummation of the transactions contemplated hereby, and the
transactions described in the Prospectus under the caption "The Roll-
Up" (such transactions are herein collectively called the "Roll-Up")
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or (with the giving of notice or the lapse
of time or both) constitute a default under, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries is bound or to
which any of the properties or assets of the Company or any of the
Subsidiaries is subject, (ii) the provisions of the charter, by-laws
or other constitutive documents of the Company or any of the
Subsidiaries or (iii) any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their properties or
assets, except in the cases of clause (i) or (iii), such breaches,
violations or defaults that in the aggregate would not have a Material
Adverse Effect; and except for (A) the registration of the Stock under
the Securities Act and (B) such consents, approvals, authorizations,
registrations or qualifications (1) as may be required under the
Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Stock by the
International Managers and the U.S. Underwriters, (2) as may have
already been obtained or made and (3) the failure to obtain or make
would not, individually or in the aggregate, have a Material Adverse
Effect, no consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or the U.S. Underwriting Agreement by the Company and the consummation
of the transactions contemplated hereby and in the Roll-Up.
(m) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company or any of
the Subsidiaries and any person granting such person the right to
require the Company or any of the Subsidiaries to file a registration
statement under the Securities Act with respect to any securities of
the Company and the Subsidiaries owned or to be owned by such person
or to require the Company or any of the Subsidiaries to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company or any of the Subsidiaries
under the Securities Act.
(n) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulation D or Regulation S of, the Securities
Act other than shares issued
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pursuant to employee benefit plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(o) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, except as
described or contemplated in the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective adverse change, which individually or in the
aggregate has had or would have a Material Adverse Effect.
(p) The consolidated historical and pro forma financial
statements, together with the related notes thereto filed as part of
the Registration Statement or included in the Prospectus comply as to
form in all material respects with the requirements of Regulation S-X
under the Act applicable to registration statements on Form S-1 under
the Act. Such historical financial statements fairly present the
financial position of the Company at the respective dates indicated
and the results of operations and cash flows for the respective
periods indicated, in each case in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout such
periods. Such pro forma financial statements have been prepared on a
basis consistent with such historical statements, except for the pro
forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and in good faith and present fairly the
pro forma position, results of operations and the other information
purported to be shown therein at the respective dates or the
respective periods therein specified. The other financial and
statistical information and data filed as part of the Registration
Statement or included in the Prospectus, historical and pro forma,
are, in all material respects, fairly presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company.
(q) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and
who have delivered the initial letter referred to in Section 7(h)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations during the periods
covered by the financial statements on which they reported contained
in the Prospectus.
(r) The Company and each of the Subsidiaries has good and
indefeasible title to all property (real and personal) described in
the Prospectus as being owned by it, free and clear of all liens,
claims, security interests or other encumbrances
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except such as are described in the Prospectus, and all the material
property described in the Prospectus as being held under lease by the
Company and any such Subsidiary is held by it under valid, subsisting
and enforceable leases, with only such exceptions as would not in the
aggregate have a Material Adverse Effect. In addition, except as
described in the Prospectus, the consummation of the transactions
contemplated by this Agreement and the Roll-Up will not give rise to
any third party rights of first refusal under any agreement as to
which the Company and any of the Subsidiaries or any of their property
or assets may be subject.
(s) The Company and each of the Significant Subsidiaries carry,
or are covered by, insurance in such amounts and covering such risks
as is adequate for the conduct of its businesses and the value of its
properties and as is customary for companies engaged in similar
businesses in similar industries.
(t) The Company and each of the Significant Subsidiaries has
such permits, licenses, franchises, certificates of need and other
approvals or authorizations of any governmental or regulatory
authority ("Permits"), including, without limitation, any permits
required by the Federal Communications Commission ("FCC"), the Federal
Aviation Administration ("FAA") or the Office of Telecommunications
("OFTEL"), as are necessary under applicable law to own their
respective properties and to conduct their respective businesses in
the manner described in the Prospectus, except to the extent that the
failure to have such Permits would not have a Material Adverse Effect.
The Company and the Significant Subsidiaries have fulfilled and
performed in all material respects, all their respective obligations
with respect to the Permits, and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Prospectus and except to the
extent that any such revocation or termination would not have a
Material Adverse Effect. Except as described in the Prospectus, none
of the Permits contains any restriction that has not previously been
satisfied and that is materially burdensome to the Company or any of
the Significant Subsidiaries.
(u) For each existing tower of the Company not yet registered
with the FCC where registration will be required, the FCC's grant of
an application for registration of such tower will not have a
significant environmental effect as defined under Section 1.1307(a) of
the FCC's rules.
(v) The consummation of the transactions contemplated by this
Agreement shall not cause any third party to have any rights of first
refusal with respect to the acquisition of towers under any Material
Agreement that has not
7
already been described in the Prospectus as to which the Company and
any of the Significant Subsidiaries or any of their property or assets
may be subject.
(w) The Company and each of the Significant Subsidiaries owns or
possesses all patents, trademarks, trademark registration, service
marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as
being owned by any of them or necessary for the conduct of their
respective businesses, and neither the Company nor any of the
Significant Subsidiaries is aware of any claim to the contrary or any
challenge by any other person to the rights of the Company or any of
the Significant Subsidiaries with respect to such rights that, if
determined adversely to the Company or any such Significant
Subsidiary, would in the aggregate have a Material Adverse Effect.
(x) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or
any Subsidiary or to which any of their respective properties is
subject, that are not disclosed in the Prospectus and which are
reasonably likely to have a Material Adverse Effect. The descriptions
in the Prospectus of all agreements, contracts, indentures, leases or
other instruments are accurate in all material respects and fairly
present the information purported to be described therein.
(y) Neither the Company nor any of the Subsidiaries is involved
in any strike, job action or labor dispute with any group of
employees, and, to the knowledge of the Company and the Subsidiaries,
no such action or dispute is threatened.
(z) The Company and each of the Subsidiaries are in compliance
in all material respects with all presently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(aa) The Company and each of the Subsidiaries have filed all
federal, state and local income and franchise tax returns required to
be filed through the date hereof and have paid all taxes due thereon,
and no tax deficiency has been
8
determined adversely to the Company or any of the Subsidiaries nor
does the Company or any of the Subsidiaries have any knowledge of any
tax deficiency which, if determined adversely to the Company or any of
the Subsidiaries, would have a Material Adverse Effect.
(bb) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities, (ii) incurred any liability or obligation, direct or
contingent, or entered into any transaction, in each case not in the
ordinary course of business which is material to the Company and its
Subsidiaries taken as a whole or (iii) declared or paid any dividend
on its capital stock (excluding payment in lieu of fractional shares
upon conversion of certain senior preferred convertible stock of the
Company).
(cc) The Company (i) makes and keeps accurate books and records
and (ii) maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements in conformity with GAAP and to maintain accountability for
its assets, (C) access to its assets is permitted only in accordance
with management's general or specific authorization and (D) the
reported accountability for its assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(dd) Neither the Company nor any of the Subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or (iii)
is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business.
(ee) Neither the Company nor any of the Subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of the Subsidiaries, has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is
in
9
violation of any provision of the Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(ff) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company or any of the Subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any
of the property now or previously owned or leased by the Company or
any of the Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate, a Material
Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of the
Subsidiaries or with respect to which the Company or any of the
Subsidiaries has knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the
aggregate, a Material Adverse Effect; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes"
shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(gg) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission promulgated thereunder.
(hh) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
(2) Purchase of the Stock by the International Managers. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 6,250,000 shares of
the International Stock to the several International Managers and each
International Manager, severally and not jointly, agrees to purchase the
respective number of shares of the International Stock set opposite that
International Manager's name in Schedule 1 hereto at U.S. $__________ a share.
Each International Manager shall be obligated to purchase from the Company that
number of shares of the International Stock which represents the same proportion
of the number of shares of the International Stock to be sold by the Company as
the number of shares of the International Stock set forth opposite the
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name of such International Manager in Schedule 1 represents of the total number
of shares of the International Stock to be purchased by all of the International
Managers pursuant to this Agreement. The respective purchase obligations of the
International Managers with respect to the International Stock shall be rounded
among the International Managers to avoid fractional shares, as the Lead
Managers may determine.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the Delivery Date (as hereinafter defined), as the case may be,
except upon payment for all the Stock to be purchased on the Delivery Date as
provided herein.
3. Offering of Stock by the International Managers.
Upon authorization by the Lead Managers of the release of the
International Stock, the several International Managers propose to offer the
International Stock for sale upon the terms and conditions set forth in the
Prospectus. The International Stock is to be offered to the public initially at
U.S. $________ a share.
Each International Manager agrees that, except to the extent permitted
by the Agreement Between U.S. Underwriters and International Managers, it will
not offer or sell any of the Stock in the United States or Canada.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the International Stock shall be made at the office of Cravath, Swaine &
Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City time,
on the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Lead
Managers and the Company. This date and time are sometimes referred to as the
"Delivery Date." On the Delivery Date, the Company shall deliver or cause to be
delivered certificates representing the International Stock to the Lead Managers
for the account of each International Manager against payment to or upon the
order of the Company of the purchase price in immediately available funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each International
Manager hereunder. Upon delivery, the International Stock shall be registered in
such names and in such denominations as the Lead Managers shall request in
writing not less than two full business days prior to the Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
International Stock, the Company shall make the certificates representing the
International Stock available for inspection by the Lead Managers in New York,
New York, not later than 2:00 P.M., New York City time, on the business day
prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Lead
Managers and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than Commission's close of business on the
second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as
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may be required by Rule 430A(a)(3) under the Securities Act; to make
no further amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise the Lead
Managers, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Lead Managers with copies
thereof; to advise the Lead Managers, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification
of the Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Lead Managers and to
counsel for the International Managers a signed copy of the
Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Lead Managers such number of the
following documents as the Lead Managers shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of earnings per
share) and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus and, if the delivery of a
prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Lead Managers and, upon their
request, to prepare and furnish without charge to each International
Manager and to any dealer in securities as many copies as the Lead
Managers may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission
or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that
12
may, in the judgment of the Company or the Lead Managers, be required
by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Lead Managers and counsel for the
International Managers and obtain the consent of the Lead Managers to
the filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days after
the end of the Company's current fiscal quarter), to make generally
available to the Company's security holders and to deliver to the Lead
Managers an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158);
(g) For a period of three years following the Effective Date, to
furnish to the Lead Managers copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder;
(h) Promptly from time to time to take such action as the Lead
Managers may reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the Lead
Managers may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Stock;
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is designed
to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock (other than
the International Stock, the U.S. Stock and shares issued pursuant to
employee benefit plans or other employee compensation plans existing
on the date hereof or pursuant to currently outstanding options,
warrants or rights), or sell or grant options, rights or warrants with
respect to any shares of Common Stock (other than the grant of options
pursuant to option plans existing on the date hereof), without the
prior written consent of Xxxxxx Brothers Inc.; to cause each person
that, as of the date of this Agreement (i) is a recordholder of
13
Common Stock or (ii) has the right to acquire shares of Common Stock
upon conversion, reclassification, exchange or exercise of another
security, which right will occur or may be fully vested and
exercisable within 180 days of this Agreement (excluding the right to
acquire shares of Common Stock pursuant to the CTSH All Employee Plan
and the CTSH Bonus Share Plan, each as defined in the Prospectus) to
furnish to the Lead Managers, prior to the Delivery Date, a letter or
letters, in form and substance substantially similar to Exhibit A
attached hereto (which is substantially identical to Exhibit A to the
U.S. Underwriting Agreement);
(j) Prior to filing with the Commission any reports on Form SR
pursuant to Rule 463 of the Rules and Regulations, to furnish a copy
thereof to the counsel for the International Managers and receive and
consider its comments thereon, and to deliver promptly to the Lead
Managers a signed copy of each report on Form SR filed by it with the
Commission; and
(k) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the U.S. Investment
Company Act of 1940, as amended, and the rules and regulations of the
Commission promulgated thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
connection therewith; (b) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any
amendments, supplements and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of sale of the Stock; (e) any applicable listing or other
fees; (f) the fees and expenses (not in excess, in the aggregate, of
$__________) of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the International Managers); (g) all fees and expenses of an
independent underwriter; (h) all costs and expenses of the International
Managers, including the fees and disbursements of counsel for the International
Managers, incident to the offer and sale of shares of the Stock by the
International Managers to employees and persons having business relationships
with the Company and its subsidiaries; and (i) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 6 and in Section
11, the International Managers shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Stock which
they may sell and the expenses of advertising any offering of the Stock made by
the International Managers.
14
7. Conditions of International Managers' Obligations. The respective
obligations of the International Managers hereunder are subject to the accuracy,
when made and on the Delivery Date, of the representations and warranties of the
Company contained herein, to the performance by the Company of their obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied
with.
(b) No International Manager or U.S. Underwriter shall have
discovered and disclosed to the Company on or prior to the Delivery
Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of Xxxxxx & Xxxxxxx, counsel for the
International Managers, is material or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form, validity, execution and delivery of this
Agreement, the U.S. Underwriting Agreement, the International Stock,
the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the International Managers, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Cravath, Swaine & Xxxxx shall have furnished to the Lead
Managers its written opinion, as counsel to the Company, addressed to
the International Managers and dated the Delivery Date, in form and
substance reasonably satisfactory to the Lead Managers, to the effect
that:
(i) Each of the Company and CCI is a corporation validly
existing and in good standing under the laws of the state of its
incorporation (which opinion may be based solely on a certificate
of the Secretary of State of such state), and the Company has all
requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus. Each of the Company and CCI is duly registered and
qualified to conduct its business and is in good standing (which
opinion may be based solely on a certificate of the Secretary of
State of such state), in each jurisdiction or
15
place where, based on a certificate of an officer of the Company,
the nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure so to register or qualify or to be in good standing would
not have a Material Adverse Effect;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the shares of Stock being
delivered on the Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus;
(iii) Except as described in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any shares of the
Stock pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel;
(iv) To the knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened against the
Company or any of the Significant Subsidiaries, or to which any
of their respective properties is subject, that are not disclosed
in the Prospectus and which are reasonably likely to have a
Material Adverse Effect or to materially affect the issuance of
the shares of capital stock or the consummation of the
transactions contemplated by this Agreement and the Roll-Up. To
the knowledge of such counsel, there are no agreements,
contracts, indentures, leases or other instruments to which the
Company or any of the Significant Subsidiaries is a party or to
which any of their respective properties or assets is subject
that are required to be described in, or filed as exhibits to,
the Registration Statement and the Prospectus that have not been
so described or filed;
(v) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company
prior to the Delivery Date (other than the financial statements
and related
16
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
(vii) The statements contained (A) in the Prospectus under
the captions "Description of Capital Stock", "Shares Eligible for
Future Sale", "Certain United States Federal Tax Consequences to
Non-United States Holders" and paragraphs 1, 2, 3, 4, 5, 6, 10,
11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 under the caption
"Underwriting" and (B) in the Registration Statement in Items 14
and 15, in each case insofar as they are descriptions of
contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate in all
material respects and present fairly the information purported to
be described therein;
(viii) This Agreement and the U.S. Underwriting Agreement
have each been duly and validly authorized, executed and
delivered by the Company;
(ix) None of the issuance, offer or sale of the shares of
Common Stock, the execution, delivery or performance by the
Company of this Agreement and the International Underwriting
Agreement, compliance by the Company with the provisions hereof
nor consummation by the Company of the transactions contemplated
hereby and in the Roll-Up (i) requires any consent, approval,
authorization or other order of, or registration or filing with,
any court, regulatory body, administrative agency or other
governmental body, agency or official, or conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, the certificate of incorporation or by-laws, or
other organizational documents, of the Company or (ii) conflicts
or will conflict with or constitutes or will constitute a breach
of, or a default under, any agreement filed as an exhibit to, or
incorporated by reference in, the Registration Statement (the
"Material Agreements"), or violates or will violate any law, rule
or regulation of the United States, or the State of New York or
the General Corporation Law of the State of Delaware, or, to such
counsel's knowledge, any order or decree of any court or
government agency or instrumentality or will result in the
creation or imposition of any Lien upon any property or assets of
the Company or CCI pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of
them may be bound or under any to which any of their respective
property or assets is subject, except in each case such breaches,
conflicts or defaults that, individually or in the aggregate,
would not have a Material Adverse Effect. For purposes of the
foregoing opinion, such counsel may assume that any agreements
referred to in clause (ii) above that are governed by laws other
than the laws of the State of New York,
17
are governed by and would be interpreted in accordance with the
laws of the State of New York; and
(x) The Company is not and, upon sale of the shares of
Common Stock to be issued and sold thereby in accordance herewith
and the application of the net proceeds to the Company of such
sale as described in the Prospectus under the caption "Use of
Proceeds," will not be an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
In addition, such counsel shall also state that such counsel has
participated in conferences with officers of the Company and with the
independent public accountants for the Company, concerning the
preparation of the Registration Statement and the Prospectus, and,
although such counsel has made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectus, it is not passing upon and does not assume any
responsibility for the accuracy or completeness of the statements
contained in the Registration Statement and the Prospectus, and has
not made any independent check or verification thereof, except insofar
as such statements relate to such counsel and to clause (xii) above,
and on the basis of the foregoing such counsel's work in connection
with this matter did not disclose any information that gave such
counsel reason to believe that the Registration Statement and the
Prospectus, as of its date or as of the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial
data included therein).
The opinion of such counsel may be limited to the laws of the
state of New York, the General Corporation Law of the state of
Delaware and the Federal laws of the United States.
(e) Xxxxx, Xxxxxx & Xxxxx, L.L.P. shall have furnished to the
Lead Managers its written opinion, as counsel to the Company,
addressed to the International Managers and dated the Delivery Date,
in form and substance reasonably satisfactory to the Lead Managers, to
the effect that:
(i) All of the issued shares of capital stock of each
Subsidiary of the Company have been duly and validly authorized
and issued and are fully paid, non-assessable and (except for
directors' qualifying shares and as described in the Prospectus
with respect to CTI) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
18
(ii) To knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the
Company or any of the Significant Subsidiaries, or to which any
of their respective properties is subject, that are not disclosed
in the Prospectus and which are reasonably likely to have a
Material Adverse Effect or to materially affect the issuance of
the shares of capital stock or the consummation of the
transactions contemplated by this Agreement and the Roll-Up;
(iii) To the knowledge of such counsel, except as described
in the Prospectus there are no contracts, agreements or
understandings between the Company or any of the Significant
Subsidiaries and any person granting such person the right to
require the Company or any of the Significant Subsidiaries to
file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company or any of the Significant
Subsidiaries to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company or any of the Significant
Subsidiaries under the Securities Act; and
(iv) The Senior Credit Facility has been duly and validly
authorized, executed and delivered by CCI and CCIC (PR) and
assuming due authorization, execution and delivery by the other
parties thereto, constitutes the valid and binding agreement of
CCI and CCIC (PR), enforceable against CCI and CCIC (PR) in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from
time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether in a proceeding in equity or at law).
The opinion of such counsel may be limited to the laws of the state of
Texas, the state of New York, the General Corporation Law of the state
of Delaware and the Federal laws of the United States.
(f) The Lead Managers shall have received an opinion, dated the
Delivery Date, of Xxxxxx Xxxx, English counsel for Castle Transmission
Services (Holdings) Ltd., substantially in the form of Exhibit B
hereto.
(g) The Lead Managers shall have received from Xxxxxx & Xxxxxxx,
counsel for the International Managers, such opinion or opinions,
dated the Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and other related
matters as the Lead Managers may reasonably require, and the Company
shall have furnished to such counsel such
19
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(h) At the time of execution of this Agreement, the Lead
Managers shall have received from KPMG Peat Marwick LLP a letter, in
form and substance satisfactory to the Lead Managers, addressed to the
International Managers and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to International Managers in
connection with registered public offerings.
(i) With respect to the letter of KPMG Peat Marwick LLP referred
to in the preceding paragraph and delivered to the Lead Managers
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Lead Managers a
letter (the "bring-down letter") of such accountants, addressed to the
International Managers and dated the Delivery Date (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(j) The Company shall have furnished to the Lead Managers a
certificate, dated the Delivery Date, of its Chief Executive Officer
or President and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained
herein; none of the events described in clause (i) or (ii) of
Section 7(l) have occurred or identifying all such events as have
occurred; and the conditions set forth in Sections 7(a) and 7(o)
have been fulfilled; and
20
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(k) The Company shall have furnished to the Lead Managers a
certificate, substantially in the form of Exhibit C hereto, dated the
Delivery Date, of its Chief Financial Officer with respect to certain
data of the Company set forth in the Prospectus.
(l) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations, business or prospects of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Lead Managers, so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on the Delivery
Date on the terms and in the manner contemplated in the Prospectus.
(m) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded any of
the Company's securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's securities.
(n) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices
21
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment of a
majority in interest of the several International Managers,
impracticable or inadvisable to proceed with the public offering or
delivery of the Stock being delivered on the Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(o) The NASDAQ National Market System shall have approved the
Stock for inclusion, subject only to official notice of issuance and
evidence of satisfactory distribution.
(p) CTI and CTSH shall have received from Credit Suisse First
Boston, as arranger and agent, and X.X. Xxxxxx Securities Ltd., as co-
arranger, and from each lender under the Loan Amendment Agreement
dated May 21, 1997, an irrevocable consent and waiver to certain
change of control provisions of such agreement as applicable to the
Roll-Up, and the Company shall provide a copy of such consent and
waiver to the Lead Managers.
(q) The Company shall have concluded the Stock Split and the
Conversions and shall have reclassified all shares of Class B Common
Stock as Common Stock (each as defined in the Prospectus).
(r) The Company shall have delivered to the Lead Managers copies
of the Governance Agreement, the Stockholders Agreement, the CTSH
Shareholders' Agreement and the CTI Services Agreement (each as
defined in the Prospectus) executed and delivered by all parties
thereto.
(s) The Company shall have delivered to the Lead Managers copies
of written documentation evidencing (i) the final ruling of the FCC
under Section 310(b)(4) of the Communications Act of 1934, as amended,
permitting up to 49.9% foreign ownership of the Company, at least 25%
of which will be from World Trade Organization member nations.
(t) The Lead Managers shall have received from each stockholder
of the Company an executed letter in the form of Exhibit A pursuant to
Section 5(i) hereto.
22
(u) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the Delivery Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the International Managers.
8. Indemnification and Contribution.
(a) The Company and its Significant Subsidiaries, jointly and
severally, shall indemnify and hold harmless each International Manager, its
officers and employees and each person, if any, who controls any International
Manager within the meaning of the Securities 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 Stock), to which that International Manager,
officer, employee or controlling person may become subject, under the Securities
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, (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 or (iii) any act or failure to act
or any alleged act or failure to act by any International Manager in connection
with, or relating in any manner to, the Stock 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 (i) or (ii) above (provided that the Company shall not be liable under
this clause (iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such International Manager through its gross negligence
or willful misconduct), and shall reimburse each International Manager and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that International Manager, 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 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 International Manager furnished to the Company
through the Lead Managers by or on behalf of any International Manager
specifically for inclusion therein; provided further that the Company shall not
be liable to any International Manager under the indemnity agreement in this
paragraph 8(a) with respect to any Preliminary Prospectus to the extent that any
such loss, claim, damage or liability of such International Manager results from
the fact that such International Manager sold shares of Common Stock to a
23
person as to whom there was not sent or given, at or prior to written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented if the Company had previously furnished copies thereof in the
quantity requested and in a timely manner in accordance with Section 5(c) hereof
to such International Manager and the loss, claim, damage or liability of such
International Manager results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus and corrected in the Prospectus as
amended or supplemented.
(b) Each International Manager, 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 the
meaning of the Securities 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 Securities 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, or in any Blue Sky Application 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 International
Manager furnished to the Company through the Lead Managers by or on behalf of
that International Manager 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 International Manager may otherwise have to
the Company or any such director, officer, employee or controlling person.
(c) 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
24
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 the Lead Managers shall have
the right to employ counsel to represent jointly the Lead Managers and those
other International Managers 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 by the International Managers against
the Company under this Section 8 if, in the reasonable judgment of the Lead
Managers, it is advisable for the Lead Managers and those International
Managers, officers, employees and controlling persons to be jointly represented
by separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. 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.
(d) 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) or 8(b) 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 on the one
hand and the International Managers on the other from the offering of the Stock
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 on the one hand and the International Managers 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 on the
one hand and the International Managers 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 Stock purchased under this Agreement (before deducting
expenses) received by the Company, on the one hand, and the total underwriting
discounts and commissions received by the International Managers with respect to
the shares of the Stock purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the shares of the Stock under
this Agreement, in each case as set
25
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 or the International Managers, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the International Managers 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 International Managers 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. 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(d), 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(d), no International Manager shall be required to
contribute any amount in excess of the amount by which the total price at which
the Stock underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such International Manager has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. 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 International Managers' obligations to
contribute as provided in this Section 8(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The International Managers severally confirm and the Company
acknowledges that (i) the last paragraph on the cover page of the Prospectus,
(ii) the stabilization legend at the top of page i of the Prospectus and (iii)
the fourth, ninth, tenth, eleventh, and twenty-second paragraphs and the first
sentence of the thirteenth paragraph under the caption "Underwriting" in the
Prospectus constitute the only information concerning such International
Managers furnished in writing to the Company by or on behalf of the
International Managers specifically for inclusion in the Registration Statement
and the Prospectus.
9. Defaulting International Managers.
If, on the Delivery Date, any International Manager defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting International Managers shall be obligated to purchase the
International Stock which the defaulting International Manager agreed but failed
to purchase on the Delivery Date in the respective proportions which the number
of shares of International Stock set opposite the name of each remaining non-
defaulting International Manager in Schedule 1 hereto bears to the total number
of shares of the International Stock set opposite the names of all the remaining
non-defaulting International Managers in Schedule 1 hereto; provided, however,
that the remaining non-defaulting International Managers shall not be obligated
to purchase any of the Stock on the Delivery Date if the total number of shares
of the Stock which the defaulting International Manager or International
Managers agreed but failed to purchase on such date exceeds 9.9% of the total
26
number of shares of the Stock to be purchased on the Delivery Date, and any
remaining non-defaulting International Manager shall not be obligated to
purchase more than 110% of the number of shares of the Stock which it agreed to
purchase on the Delivery Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded, the remaining non-defaulting International
Managers, or those other underwriters satisfactory to the Lead Managers who so
agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Stock to be purchased on
the Delivery Date. If the remaining International Managers or other
underwriters satisfactory to the Lead Managers do not elect to purchase the
shares which the defaulting International Manager or International Managers
agreed but failed to purchase on the Delivery Date, this Agreement shall
terminate without liability on the part of any non-defaulting International
Manager or the Company, except that the Company will continue to be liable for
the payment of expenses to the extent set forth in Sections 6 and 11. As used
in this Agreement, the term "International Manager" includes, for all purposes
of this Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases International Stock
which a defaulting International Manager agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company for damages caused by its
default. If other International Managers are obligated or agree to purchase the
Stock of a defaulting or withdrawing International Manager, either the Lead
Managers or the Company may postpone the Delivery Date for up to seven full
business days in order to effect any changes that, in the opinion of
counsel for the Company or counsel for the International Managers, may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement.
10. Termination. The obligations of the International Managers
hereunder may be terminated by the Lead Managers by notice given to and received
by the Company prior to delivery of and payment for International Stock if,
prior to that time, any of the events described in Sections 7(l), 7(m) or 7(n)
shall have occurred or if the International Managers shall decline to purchase
the Stock for any reason permitted under this Agreement.
11. Reimbursement of International Managers' Expenses. If the
Company shall fail to tender the Stock for delivery to the International
Managers by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the International Managers' obligations hereunder required to
be fulfilled by the Company is not fulfilled, the Company will reimburse the
International Managers for all reasonable out-of-pocket expenses (including fees
and disbursements of counsel) incurred by the International Managers in
connection with this Agreement and the proposed purchase of the International
Stock, and upon demand the Company shall pay the full amount thereof to the Lead
Managers. The Company shall have no liability to any of the International
Mangers for damages on account of loss of anticipated profits form the proposed
sale by them of the International Stock.
27
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or sent
by mail, telex or facsimile transmission to Xxxxxx Brothers
International (Europe), c/x Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any
notice pursuant to Section 8(c), to the Director of Litigation, Office
of the General Counsel, Xxxxxx Brothers International (Europe), c/x
Xxxxxx Brothers Inc., Three World Financial Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000;
(b) 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: Xxxxxxx X. Xxxxx, III, (Fax:
(000) 000-0000), with a copy to Cravath, Swaine & Xxxxx, Worldwide
Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
X. Xxxxx (Fax: (000) 000-0000);
provided, however, that any notice to an International Manager pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission
to such International Manager at its address set forth in its acceptance telex
to the Lead Managers, which address will be supplied to any other party hereto
by the Lead Managers upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the International Managers by Xxxxxx Brothers International
(Europe), Credit Suisse First Boston (Europe), Limited, Xxxxxxx Sachs
International and Xxxxx Xxxxxx Inc.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the International Managers and the
Company and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any International
Manager within the meaning of Section 15 of the Securities Act and for the
benefit of each International Manager (and controlling persons thereof) who
offers or sells any shares of Common Stock in accordance with the terms of the
Agreement Between U.S. Underwriters and International Managers and (B) the
indemnity agreement of the International Managers contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
28
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the International Managers
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS
RELATING TO CONFLICTS OF LAW.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the Company,
the Significant Subsidiaries and the International Managers, please indicate
your acceptance in the space provided for that purpose below.
29
Very truly yours,
Crown Castle International Corp.
By: ________________________________
Name:
Title:
30
Xxxxxx Brothers International (Europe)
Credit Suisse First Boston (Europe) Limited
Xxxxxxx Sachs International
Xxxxx Xxxxxx Inc.
For themselves and as Lead Managers
of the several International Managers named
in Schedule 1 hereto
By Xxxxxx Brothers International (Europe)
By: _________________________________
Name:
Title:
31
SCHEDULE 1
Number of
International Managers Shares
---------------------- ------------
Xxxxxx Brothers International (Europe).............................
Credit Suisse First Boston (Europe) Limited........................
Xxxxxxx Sachs International........................................
Xxxxx Xxxxxx Inc...................................................
---------
Total............................................................ 6,250,000
=========
32
Exhibit A
---------
LOCK-UP AGREEMENT
August __, 1998
Crown Castle International Corp.
000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxxx Brothers Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxx Inc.
As Representatives of the
several U.S. Underwriters
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers International (Europe)
Credit Suisse First Boston (Europe) Limited
Xxxxxxx, Sachs International
Xxxxx Xxxxxx Inc.
As Representatives of the several
International Managers
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Brothers Inc., Credit Suisse
First Boston Corporation, Xxxxxxx, Sachs & Co., and Xxxxx Xxxxxx Inc., as the
U.S. representatives of the several U.S. underwriters and Xxxxxx Brothers
International (Europe), Credit Suisse First Boston (Europe) Limited, Xxxxxxx
Xxxxx International and Xxxxx Xxxxxx Inc., as the lead managers, (together with
the U.S. representatives, the "Representatives") of the several International
Managers (together with the U.S. underwriters, the "Underwriters"), propose to
enter into a U.S. underwriting agreement (the "U.S. Underwriting Agreement") and
an international underwriting agreement (the "International Underwriting
Agreement"), respectively, with Crown Castle International Corp. (the "Company")
and the other Selling Stockholders named therein, providing for the public
offering by the Underwriters, including the Representatives, of Common Stock,
par value $.01 per share (the "Common Stock"), of the
1
Company (the "Public Offering"). Capitalized terms not defined herein shall have
the meaning given them in the U.S. Underwriting Agreement.
In consideration of the Underwriters' agreement to purchase and
undertake the Public Offering of the Common Stock of the Company and the Crown
Selling Stockholders and for other good and valuable consideration, receipt of
which is hereby acknowledged, the undersigned agrees that, without the prior
written consent of Xxxxxx Brothers Inc., he, she or it will not, during the
period commencing on the date hereof and ending 180 days after the date of the
Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of the Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or any right to acquire Common
Stock, or (ii) enter into any swap or similar agreement that transfers, in whole
or in part, the economic risk of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
provisions shall not apply to: (a) the exercise of options or warrants, (b) the
sale of shares of Common Stock to the Underwriters in connection with the Public
Offering pursuant to the provisions of the U.S. Underwriting Agreement and the
International Underwriting Agreement, as applicable, (c) if the undersigned is
an individual and is an employee of the Company as of the date of the Prospectus
(other than any Crown Selling Stockholder or Executive Selling Stockholder), the
sale of up to 12% of the shares of Common Stock in the aggregate beneficially
owned by the undersigned as of the date of the Prospectus in compliance with the
registration requirements of the Securities Act pursuant to a valid exemption
therefrom; provided that if the undersigned relies on the exception in clause
(b) above, then the aggregate number of shares that may be sold pursuant to this
clause (c) shall be reduced by the number of shares sold pursuant to clause (b)
above, or (d) transfers, without consideration, of the Common Stock or any
securities convertible into, or exercisable or exchangeable for, Common Stock
(1) if the undersigned is a natural person, to family members of the
undersigned, to one or more trusts established for the benefit of one or more
family members of the undersigned or to trusts established by the undersigned
for charitable purposes or (2) if the undersigned is not a natural person, to
affiliates, members, partners, shareholders or beneficiaries of the undersigned,
provided in each case that each transferee executes and delivers to Xxxxxx
Brothers Inc. an agreement whereby such transferee agrees to be bound by all of
the foregoing terms and provisions.
In addition, the undersigned agrees that the Company may (i) with
respect to any shares of Common Stock for which the undersigned is the record
holder, cause the transfer agent for the Company to note stop-transfer
instructions with respect to such shares of Common Stock consistent with the
foregoing paragraph on the transfer books and records of the Company and (ii)
with respect to any shares of Common Stock for which the undersigned is the
beneficial holder but not the record holder, cause the record holder of such
shares of Common Stock to cause the transfer agent for the Company to note stop-
transfer instructions with respect to such shares of Common Stock consistent
with the foregoing paragraph on the transfer books and records of the Company.
2
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this letter agreement, and that, upon
request, the undersigned will execute any additional documents necessary or
desirable in connection with the enforcement hereof. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and any obligations of the undersigned shall be binding upon the
heirs, personal representatives, successors, and assigns of the undersigned.
Very truly yours,
__________________________
__________________________
(Name - Please Type)
__________________________
__________________________
__________________________
(Address)
__________________________
(Social Security or Taxpayer Identification No.)
3
Exhibit B
---------
FORM OF OPINION FOR ENGLISH COUNSEL FOR CTI
1
Exhibit C
---------
CERTIFICATE OF CHIEF FINANCIAL OFFICER
The undersigned, Xxxxxxx X. Xxxxx, III, Chief Financial Officer of
Crown Castle International Corp., a Delaware corporation (the "Company"),
pursuant to Section 14(p) of that certain U.S. Underwriting Agreement, dated
August __, 1998 by and among the Company, the Crown Selling Stockholders named
therein, the Executive Selling Stockholders named therein, the Employee Selling
Stockholders named therein, the Sponsor Selling Stockholders named therein,
Xxxxxx Brothers Inc., Credit Suisse First Boston Corporation, Xxxxxxx, Sachs &
Co. and Xxxxx Xxxxxx Inc., and pursuant to Section 7(k) of that certain
International Underwriting Agreement, dated August __, 1998, by and among the
Company, Xxxxxx Brothers International (Europe), Credit Suisse First Boston
(Europe) Limited, Xxxxxxx Xxxxx International and Xxxxx Xxxxxx Inc., does hereby
certify on behalf of the Company with respect to the registration statement on
Form S-1 (File No. 333-57283) relating to the initial public offering of shares
of the Company's common stock, and the Prospectus contained therein dated as of
August __, 1998 and as filed with the U.S. Securities and Exchange Commission
pursuant to Rule 424(b) (the "Prospectus"), that:
1. All data for numbers of tower, rooftop and communication sites
(collectively, "Towers") owned, leased, managed, licensed, marketed, shared
pursuant to contract, or otherwise utilized by or under the management of the
Company and each of its subsidiaries (collectively, "CCIC") or Castle
Transmission Services (Holdings) Ltd and its subsidiaries (collectively, "CTSH"
and, together with CCIC, the "Businesses"), as presented in the Prospectus,
including but not limited to such data presented under the captions identified
on Schedule I hereto (such data, whether presented in tabular or text format,
the "Tower Data"), have been prepared by officers of the Businesses, including
the Chief Financial Officer of the Company (such officers, the "Responsible
Officers").
2. All data for numbers of transmitters owned, leased, managed,
licensed, marketed, shared pursuant to contract, or otherwise utilized by or
under the management of the Businesses, as presented in the Prospectus,
including but not limited to such data presented under the captions identified
on Schedule I hereto (such statements, the "Transmitter Data"), have been
prepared by the Responsible Officers.
3. All financial data for the revenue derived from or related to
Tower Data and Transmitter Data, as presented in the Prospectus, including but
not limited to such data presented under the captions identified on Schedule I
hereto (such statements, the "Tower Revenue Statements") have been prepared by
the Responsible Officers.
4. The statements regarding percentage of population coverage of
analog television transmitters owned and managed by the Company, as presented in
the Prospectus under the captions identified on Schedule I hereto (such
statements, the "Population Coverage Statements") have been prepared by the
Responsible Officers.
5. In collecting and preparing the Tower Data and the Transmitter
Data, the undersigned (i) participated in meetings and conversations with the
Responsible Officers and
1
such officers of subsidiaries of the Company and CTSH responsible for the
management and evaluation of the areas of the Company's operations described in
the Prospectus (the "Subsidiary Officers") and (ii) examined the books and
records of the Company (including its subsidiaries), together with such
schedules prepared by the Responsible Officers and the Subsidiary Officers.
6. The Tower Data and Transmitter Data is compiled by the Subsidiary
Officers and Responsible Officers in a database managed by computer software
sufficiently capable of maintaining and manipulating such data.
7. The Tower Data and Transmitter Data is collected in the database
pursuant to established procedures for tracking the number of Towers owned,
leased, managed, licensed, marketed, shared pursuant to contract, or otherwise
utilized by or under the management of the Company, indicating (i) which
corporate entity of the Businesses exercises control over such Tower or
installed transmitter, (ii) the geographic location of such Tower or installed
transmitter and (iii) in the case of communications sites, the number of towers
located at such site and the status of such site (e.g., site identification,
acquisition, development, construction, commissioning or operational), and such
procedures include:
(a) in the case of Tower ownership, (1) each tower constructed by
the Businesses is entered into the database at the time of commissioning of
such tower and (2) each tower acquired by the Businesses, whether
individually or in connection with the acquisition of a business that owns
such tower, is entered into the database at the time of acquisition, and if
any owned tower is sold to a third party not part of the Businesses, such
tower is removed from the database at the time of such sale;
(b) in the case of Tower leasing or licensing, each tower,
rooftop or communications site leased or licensed to the Businesses is
entered into the database at the time the lease is executed or the license
is granted, and removed from the database at the time the lease is
terminated or license is revoked or terminated; and
(c) in the case of Tower management, marketing, sharing pursuant
to contract or other utilization, each Tower managed, marketed, shared or
utilized by the Businesses is entered into the database at the time the
contract relating to such tower is executed and is removed from the
database at the time the contract is terminated.
8. In preparing the Tower Revenue Statements, the undersigned (i)
participated in meetings and conversations with the Responsible Officers and the
Subsidiary Officers and (ii) examined the books and records of the Company
(including its subsidiaries), together with such schedules prepared by the
Responsible Officers and the Subsidiary Officers.
9. The Tower Revenue Statements were prepared by the Subsidiary
Officers and Responsible Officers based on the Tower Data and the Transmitter
Data and the Company's consolidated financial statements and the financial
statements of the subsidiaries of the Company. The preparation of the Tower
Revenue Statements included:
2
(a) in the case of owned towers, each Tower Revenue Statement
states the actual gross revenue paid to the Company by all tenants and
users of the relevant tower, rooftop or communication site during the
period indicated (and unless specifically indicated otherwise in the
Prospectus, all such Tower Revenue Statements measure actual gross revenue
paid to the Company on a monthly basis); and
(b) in the case of tower leasing, licensing, management or
marketing, each Tower Revenue Statement states the actual net income to the
Company paid by all tenants and users of the relevant tower, rooftop or
communication site during the period indicated (and unless specifically
indicated otherwise in the Prospectus, all such Tower Revenue Statements
measure actual net income paid to the Company on a monthly basis).
10. The Businesses are implementing procedures that will enable the
Company's independent auditors to verify the Tower Data, the Transmitter Data
and the Tower Revenue Statements.
11. The Population Coverage Statements are based on propagation
characteristics of the geographic area surrounding the broadcast transmission
sites and the range capability of the typical transmitters installed by the
Businesses at such sites; and to the knowledge of the undersigned after
reasonable inquiry with the Responsible Officers and the Subsidiary Officers,
such Population Coverage Statements or comparable coverage data have not been
contradicted by the Director General of the U.K. Office of Telecommunications or
any other relevant regulatory agency.
12. The undersigned hereby represents and warrants that the Tower
Data, Transmission Data, the Tower Revenue Statements and the Population
Coverage Statements presented in the Prospectus are true and accurate. The
undersigned hereby further represents and warrants that the procedures outlined
above were undertaken by the Responsible Officers and the Subsidiary Officers
and that the compilation of the data that comprise the Tower Data, Transmission
Data, the Tower Revenue Statements and the Population Coverage Statements was
performed by the Responsible Officers and Subsidiary Officers in good faith and
using such judgment and is typically used by them in the management and
evaluation of the Company's operations.
IN WITNESS WHEREOF, the undersigned has hereunto signed his name on
behalf of the Company this __ day of August, 1998.
By: ________________________________
Name: Xxxxxxx X. Xxxxx, III
Title: Chief Financial Officer
3
SCHEDULE I
The Tower Data, Transmitter Data, Tower Revenue Statements and
Population Coverage Statements are principally located under the following
captions in the Prospectus:
. "Prospectus Summary--The Company"
. "Prospectus Summary--Background"
. "Prospectus Summary--Summary Unaudited Pro Forma Financial and Other Data"
and the notes thereto
. "Prospectus Summary--Summary Financial and Other Data of CCIC" and the
notes thereto
. "Prospectus Summary--Summary Financial and Other Data of CTI" and the notes
thereto
. "Risk Factors--Risks Associated with Construction and Acquisition of
Towers"
. "Risk Factors--Reliance on Significant Agreements"
. "Selected Financial and Other Data of CCIC" and the notes thereto
. "Selected Financial and Other Data of Crown"
. "Selected Financial and Other Data of CTI"
. "Management's Discussion and Analysis of Financial Condition and Results of
Operations--Results of Operations". "Management's Discussion and Analysis
of Financial Condition and Results of Operations--Liquidity and Capital
Resources"
. "Industry Background--Trends in the
Wireless Communications and Broadcasting Industries"
. "Business"
. "Business--Background"
. "Business--U.S. Operations"
. "Business--U.K. Operations"
