Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
GLOBAL SIGNAL INC.,
CROWN CASTLE INTERNATIONAL CORP.
AND
CCGS HOLDINGS LLC
DATED AS OF OCTOBER 5, 2006
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TABLE OF CONTENTS
PAGE
ARTICLE I THE MERGER...........................................................2
Section 1.1 The Merger...................................................2
Section 1.2 Effective Time; Closing......................................3
Section 1.3 Effect of the Merger.........................................3
Section 1.4 Certificate of Formation and Operating Agreement.............3
Section 1.5 Officers.....................................................3
ARTICLE II CONVERSION OF SECURITIES; EXCHANGE PROCEDURES.......................4
Section 2.1 Effect on Shares.............................................4
Section 2.2 Equity-Based Awards..........................................6
Section 2.3 Options and Warrants.........................................7
Section 2.4 Exchange of Certificates.....................................8
Section 2.5 Stock Transfer Books........................................11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF GLOBAL..........................11
Section 3.1 Organization and Standing...................................12
Section 3.2 Capitalization..............................................13
Section 3.3 Authority for Agreement.....................................14
Section 3.4 No Conflict.................................................15
Section 3.5 Required Filings and Consents...............................16
Section 3.7 SEC Filings; Financial Statements...........................17
Section 3.8 Absence of Certain Changes or Events........................19
Section 3.9 Taxes.......................................................20
Section 3.10 Change of Control Agreement; No Excess Parachute Payment....22
Section 3.11 Litigation..................................................22
Section 3.12 Contracts and Commitments...................................23
Section 3.13 Information Supplied........................................24
Section 3.14 Employee Benefit Plans......................................25
Section 3.15 Labor and Employment Matters................................28
Section 3.16 Environmental Compliance and Disclosure.....................29
Section 3.17 Intellectual Property.......................................30
Section 3.18 Stockholders' Rights Agreement..............................31
Section 3.19 Brokers; Schedule of Fees and Expenses......................31
Section 3.20 Insurance...................................................31
Section 3.21 Foreign Corrupt Practices Act and International Trade
Sanctions...................................................32
Section 3.22 Ownership of Crown Common Stock.............................32
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF CROWN AND MERGER SUB.............32
Section 4.1 Organization and Standing...................................32
Section 4.2 Capitalization..............................................33
Section 4.3 Authority for Agreement.....................................35
Section 4.4 No Conflict.................................................36
Section 4.5 Required Filings and Consents...............................36
Section 4.6 Compliance; Regulatory Compliance...........................37
Section 4.7 SEC Filings; Financial Statements...........................38
Section 4.8 Absence of Certain Changes or Events..........................
Section 4.9 Taxes.......................................................40
Section 4.10 Change of Control Agreement; No Excess Parachute Payment....41
Section 4.12 Information Supplied........................................42
Section 4.13 Environmental Compliance and Disclosure.....................43
Section 4.14 Stockholders' Rights Agreement..............................44
Section 4.15 Brokers.....................................................44
Section 4.17 Ownership of Global Common Stock............................44
Section 5.1 Conduct of Global's Business Pending the Merger.............45
Section 5.2 Conduct of Crown's Business Pending the Merger..............48
Section 5.3 Access to Information; Confidentiality......................49
Section 5.4 Notification of Certain Matters.............................50
Section 5.5 Further Assurances..........................................50
Section 5.6 No Solicitation; Board Recommendation.......................52
Section 5.7 Stockholder Litigation......................................58
Section 5.8 Indemnification.............................................58
Section 5.9 Public Announcements........................................59
Section 5.10 Registration Statement; Joint Proxy Statement...............59
Section 5.11 Stockholders' Meetings........................................
Section 5.12 NYSE Listing and De-Listing.................................61
Section 5.13 Composition of Board of Directors of Crown..................61
Section 5.14 Tax Treatment of Merger.....................................62
Section 5.15 Accountant Letters..........................................62
Section 5.16 Affiliates..................................................62
Section 5.17 Standstill Agreements; Confidentiality Agreements...........62
Section 5.18 Employees...................................................63
Section 5.19 Rights Agreement............................................64
Section 5.20 Investor Agreement..........................................64
ARTICLE VI CONDITIONS.........................................................64
Section 6.1 Conditions to the Obligation of Each Party..................64
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Section 6.2 Conditions to Obligations of Crown and Merger Sub to
Effect the Merger...........................................65
Section 6.3 Conditions to Obligations of Global to Effect the Merger....66
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER.................................67
Section 7.1 Termination.................................................67
Section 7.2 Effect of Termination.......................................68
Section 7.3 Payments to Global..........................................71
Section 7.4 Amendments..................................................72
Section 7.5 Waiver......................................................72
Section 8.1 No Third Party Beneficiaries................................73
Section 8.2 Entire Agreement............................................73
Section 8.3 Succession and Assignment...................................73
Section 8.4 Counterparts................................................73
Section 8.5 Headings....................................................73
Section 8.6 Governing Law; Jurisdiction.................................73
Section 8.7 Severability; Jurisdiction..................................74
Section 8.8 Specific Performance........................................74
Section 8.9 Mutual Interest.............................................74
Section 8.10 Construction................................................75
Section 8.11 Non-Survival of Representations and Warranties and
Agreements..................................................75
Section 8.12 Certain Definitions.........................................75
Section 8.13 Notices.....................................................76
Section 8.14 Procedure for Termination, Amendment, Extension or Waiver...77
Section 8.15 Waiver of Jury Trial........................................77
Section 8.16 Global Disclosure Letter and Crown Disclosure Letter........77
EXHIBIT 5.16 -- Affiliate Letter
INDEX OF DEFINED TERMS
409A Authorities..............................................................27
Xxxxxx.........................................................................2
Affiliate.....................................................................75
Agreement......................................................................1
AJCA..........................................................................27
Break-Up Amount...............................................................71
Cash Consideration.............................................................4
Cash Consideration Cap.........................................................6
Cash Election..................................................................4
Cash Portion...................................................................9
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CERCLA........................................................................29
Certificate....................................................................4
Certificate of Merger..........................................................3
Closing........................................................................3
Closing Date...................................................................3
Code...........................................................................2
Commonly Controlled Entity....................................................25
Communications Act............................................................16
Concerted Action..............................................................28
Confidentiality Agreement.....................................................50
Converted Deferred Shares.......................................................
Converted Option...............................................................7
Converted Restricted Shares....................................................6
Converted Warrant..............................................................8
Covered Employees.............................................................63
Crown..........................................................................1
Crown Adverse Recommendation Change...........................................56
Crown Board....................................................................1
Crown Bylaws..................................................................33
Crown Certificate of Incorporation............................................33
Crown Class A Common Stock....................................................33
Crown Common Stock.............................................................1
Crown Converted Deferred Shares................................................7
Crown Disclosure Letter.......................................................32
Crown Expenses................................................................70
Crown Filed SEC Report........................................................38
Crown Financial Advisor.......................................................36
Crown Financial Statements....................................................38
Crown Notice of Adverse Recommendation........................................57
Crown Option..................................................................33
Crown Participant.............................................................42
Crown Restricted Shares.......................................................33
Crown SEC Reports.............................................................38
Crown Stock Plans.............................................................33
Crown Stock Rights............................................................34
Crown Stockholder Approval....................................................35
Crown Stockholders' Meeting...................................................59
Crown Subsidiaries............................................................35
Crown Subsidiary..............................................................35
Crown Superior Proposal.......................................................56
Crown Takeover Proposal.......................................................56
Crown Termination Fee.........................................................69
Crown Warrants................................................................34
D&O Insurance.................................................................58
DGCL...........................................................................1
DLLC Act.......................................................................1
iv
DOJ.............................................................................
Effective Time.................................................................3
Election Date..................................................................5
environment...................................................................30
Environmental Laws............................................................30
ERISA.........................................................................25
Escrow Agreement..............................................................71
Exchange Act..................................................................16
Exchange Agent.................................................................8
Exchange Fund..................................................................8
FAA...........................................................................16
FCC...........................................................................16
Form of Election...............................................................5
Fortress.......................................................................1
FTC...........................................................................51
GAAP..........................................................................18
Global.........................................................................1
Global Adverse Recommendation Change..........................................54
Global Benefit Agreements.....................................................25
Global Benefit Plans..........................................................25
Global Board...................................................................1
Global Bylaws.................................................................12
Global Certificate of Incorporation...........................................12
Global Common Stock............................................................1
Global Deferred Share.........................................................13
Global Disclosure Letter......................................................12
Global Expenses...............................................................69
Global Filed SEC Report.......................................................17
Global Financial Advisor......................................................15
Global Financial Statements...................................................18
Global Intellectual Property Rights...........................................31
Global Material Contract......................................................23
Global Notice of Adverse Recommendation.......................................54
Global Option..................................................................7
Global Participant............................................................22
Global Pension Plan...........................................................25
Global Preferred Stock........................................................13
Global Restricted Shares......................................................13
Global SEC Reports............................................................17
Global Stock Rights...........................................................13
Global Stockholder Approval...................................................15
Global Stockholders' Meeting..................................................59
Global Subsidiary.............................................................14
Global Superior Proposal......................................................53
Global Takeover Proposal......................................................53
Global Termination Fee........................................................70
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Global Third Quarter Dividend..................................................6
Global Warrant.................................................................8
Global Welfare Plan...........................................................25
Governmental Entity...........................................................16
Greenhill......................................................................1
Hazardous Material............................................................30
HSR Act.......................................................................16
HSR Filing....................................................................51
Indemnified Parties...........................................................58
Intellectual Property.........................................................31
Joint Proxy Statement.........................................................59
Judgments.....................................................................64
known to Crown................................................................76
known to Global...............................................................76
Law...........................................................................15
Liens.........................................................................14
Litigation....................................................................23
Material Adverse Effect.......................................................75
Merger.........................................................................1
Merger Consideration...........................................................4
Merger Sub.....................................................................1
Merger Sub Units...............................................................4
New Plan......................................................................63
NLRB..........................................................................28
Non-Affiliate Plan Fiduciary..................................................27
Nonqualified Deferred Compensation Plan.......................................27
NYSE..........................................................................16
Omnibus Plan...................................................................7
Order.........................................................................15
Outside Date..................................................................67
person........................................................................75
Primary Company Executives....................................................22
Prorated Cash Amount...........................................................6
Qualifying Income.............................................................71
Real Estate Transfer Taxes....................................................69
Registration Statement........................................................59
REIT..........................................................................20
Release.......................................................................30
Representatives...............................................................49
Requested Cash Amount..........................................................6
Rights........................................................................49
Rights Agreement..............................................................44
Xxxxxxxx-Xxxxx Act............................................................17
SEC...........................................................................12
Securities Act................................................................16
Share Issuance.................................................................1
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Shares.........................................................................4
Stock Consideration............................................................4
Stock Election.................................................................4
Stockholders Agreement.........................................................2
Subsidiary....................................................................12
Support Agreements.............................................................2
Surviving Company..............................................................1
Tax...........................................................................21
Tax Return....................................................................22
Third-Party Intellectual Property Rights......................................31
to the knowledge of Crown.....................................................76
to the knowledge of Global....................................................76
Transaction Agreements.........................................................2
TRS...........................................................................20
Warrant Agreement..............................................................8
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated
as of October 5, 2006, is by and among CROWN CASTLE INTERNATIONAL CORP., a
Delaware corporation ("Crown"), CCGS HOLDINGS LLC, a Delaware limited liability
company ("Merger Sub") and a direct wholly-owned subsidiary of Crown, and
GLOBAL SIGNAL INC., a Delaware corporation ("Global").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of this
Agreement and in accordance with the General Corporation Law of the State of
Delaware (the "DGCL") and the Delaware Limited Liability Company Act (the "DLLC
Act"), Crown, Merger Sub and Global will enter into a business combination
transaction pursuant to which Global will merge with and into Merger Sub (the
"Merger"), with Merger Sub as the surviving entity (subject to Section 1.1, the
"Surviving Company") and a direct wholly-owned subsidiary of Crown;
WHEREAS, the board of directors of Global (the "Global
Board") (i) has determined that the Merger is consistent with and in
furtherance of the long-term business strategy of Global, and in the best
interests of Global and the holders of its common stock, par value $0.01 per
share (the "Global Common Stock"), and has approved this Agreement, the Merger
and the other transactions contemplated by this Agreement and declared their
advisability and (ii) has recommended that the stockholders of Global approve
and adopt this Agreement and the Merger;
WHEREAS, the board of directors of Crown (the "Crown Board")
(i) has determined that the Merger is consistent with and in furtherance of the
long-term business strategy of Crown, and in the best interests of Crown and
its stockholders, and has approved this Agreement and the other Transaction
Agreements (as defined below), the Merger, the Share Issuance (as defined
below) and the other transactions contemplated by this Agreement and declared
their advisability and (ii) has recommended that the stockholders of Crown
approve the issuance of common stock, par value $0.01 per share, of Crown (the
"Crown Common Stock") in connection with the Merger and the other transactions
contemplated hereby (the "Share Issuance");
WHEREAS, the sole member of Merger Sub has determined that
the Merger is in the best interests of Merger Sub and its sole member and has
approved this Agreement, the Merger and the other transactions contemplated by
this Agreement and declared their advisability;
WHEREAS, concurrently with the execution and delivery of this
Agreement (i) Fortress Pinnacle Investment Fund, FRIT PINN LLC, Fortress
Registered Investment Trust, FRIT Holdings LLC and FIT GSL LLC (collectively,
"Fortress"), (ii) Xxxxxxxxx Capital Partners, LLC, GCP SPV1, LLC and GCP SPV2,
LLC (collectively, "Greenhill") and (iii) Xxxxxx Capital International, Ltd.,
Xxxxxx Capital Partners I, LP, Xxxxxx Capital Partners II, LP, Whitecrest
Partners, LP, Riva Capital Partners, LP and 222 Partners, LLC
(collectively, "Xxxxxx") have entered into and delivered support agreements
(collectively, the "Support Agreements") to Crown, pursuant to which Fortress,
Greenhill and Xxxxxx have agreed, subject to the terms and conditions thereof,
to vote certain of their shares (constituting, in the aggregate, 40% of the
shares of Global Common Stock outstanding on the date hereof) in favor of this
Agreement and the transactions contemplated hereby (including the Merger) and
against any transaction or other action that would interfere with this
Agreement or any of the transactions contemplated hereby (including the
Merger);
WHEREAS, concurrently with the execution and delivery of this
Agreement, Crown has entered into a stockholders agreement with Fortress,
Greenhill and Xxxxxx (the "Stockholders Agreement" and, together with this
Agreement and the Support Agreements, the "Transaction Agreements"), pursuant
to which Crown has granted, subject to the terms and conditions thereof, to
each of Fortress, Greenhill and Xxxxxx certain registration rights and certain
rights to re-nominate directors to the Crown Board;
WHEREAS, Crown may, prior to the Merger, contribute all of
the limited liability company interests in Merger Sub to another limited
liability company wholly owned by Crown; and
WHEREAS, for U.S. federal income tax purposes, it is intended
by Crown, Merger Sub and Global that (a) the Merger shall qualify as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the rules and regulations
promulgated thereunder, (b) this Agreement shall constitute a plan of
reorganization, and (c) Crown and Global each shall be a party to such
reorganization within the meaning of Section 368(b) of the Code.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements contained in
this Agreement and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
THE MERGER
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Section 1.1 The Merger. Upon the terms and subject to the conditions
of this Agreement, and in accordance with the DGCL and the DLLC Act, at the
Effective Time (as defined in Section 1.2), Global shall be merged with and
into Merger Sub. As a result of the Merger, the separate corporate existence of
Global shall cease and Merger Sub shall continue as the Surviving Company
following the Merger. The existence of Merger Sub shall continue unaffected and
unimpaired by the Merger and, as the Surviving Company, it shall be governed by
the Laws (as defined in Section 3.4) of the State of Delaware. At the option of
Crown and in lieu of the otherwise applicable provisions of this Section 1.1,
the Merger will consist of the merger of Merger Sub with and into Global, with
Global as the Surviving Company; provided that Crown shall not be entitled to
exercise such right to the extent that it would result in the failure to be
satisfied of the conditions set forth in either Section 6.2(d) or Section
6.3(d). In the event that Crown makes such an election, the parties shall
discuss in good faith appropriate
2
amendments to this Agreement and the other agreements contained herein to give
effect to such change.
Section 1.2 Effective Time; Closing. As promptly as practicable (and
in any event within three (3) business days) after the satisfaction or waiver
of the conditions set forth in ARTICLE VI hereof (other than those conditions
that by their nature are to be satisfied at the Closing (as defined below)),
the parties hereto shall cause the Merger to be consummated by filing a
certificate of merger (the "Certificate of Merger") with the Secretary of State
of the State of Delaware and by making all other filings or recordings required
under the DGCL or the DLLC Act in connection with the Merger, in such form as
is required by, and executed in accordance with the relevant provisions of, the
DGCL or the DLLC Act, as applicable. The Merger shall become effective at such
time as the Certificate of Merger is duly filed with the Secretary of State of
the State of Delaware, or at such later time as the parties hereto agree and as
shall be specified in the Certificate of Merger (the date and time the Merger
becomes effective, the "Effective Time"). On the date of such filing, a closing
(the "Closing") shall be held at 10:00 a.m., Eastern Time, at the offices of
Cravath, Swaine & Xxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such
other time and location as the parties hereto shall otherwise agree. The date
on which the Closing occurs is referred to in this Agreement as the "Closing
Date".
Section 1.3 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of the DGCL and
the DLLC Act. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, except as otherwise provided herein, all the
property, rights, privileges, powers and franchises of Global and Merger Sub
shall vest in the Surviving Company, and all debts, liabilities, obligations,
restrictions, disabilities and duties of Global and Merger Sub shall become the
debts, liabilities, obligations, restrictions, disabilities and duties of the
Surviving Company.
Section 1.4 Certificate of Formation and Operating Agreement.
(a) The Certificate of Formation of Merger Sub in effect immediately
preceding the Effective Time shall be the Certificate of Formation of the
Surviving Company until thereafter changed or amended as provided therein or by
applicable Law.
(b) The Limited Liability Company Agreement of Merger Sub in effect
immediately preceding the Effective Time shall be the Limited Liability Company
Agreement of the Surviving Company until thereafter changed or amended or as
provided therein or by applicable Law.
Section 1.5 Officers. From and after the Effective Time, until the
earlier of their resignation or removal or until their respective successors
are duly elected or appointed and qualified in accordance with the Limited
Liability Company Agreement of Merger Sub, the officers of Merger Sub at the
Effective Time, if any, shall be the officers of the Surviving Company.
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ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE PROCEDURES
---------------------------------------------
Section 2.1 Effect on Shares. At the Effective Time, by virtue of the
Merger and without any action on the part of Crown, Merger Sub, Global or the
holders of any of the following securities:
(a) Subject to the other provisions of this ARTICLE II, each share of
Global Common Stock, other than any such share that is a Global Restricted
Share (as defined in Section 3.2(a)) as of the Effective Time and that does not
become fully vested and nonforfeitable at the Effective Time in accordance with
the terms of the applicable award agreement (collectively, the "Shares"),
issued and outstanding immediately prior to the Effective Time (other than any
Shares cancelled pursuant to Section 2.1(b)), shall automatically be converted
into and represent the right to receive, at the election of the holder thereof,
one of the following (the "Merger Consideration"): (i) for each Share with
respect to which an election to receive stock has been made effectively and not
revoked or deemed to have been made in accordance with Section 2.1(d) (a "Stock
Election"), 1.61 shares of Crown Common Stock (the "Stock Consideration"); and
(ii) for each Share with respect to which an election to receive cash has been
effectively made and not revoked pursuant to (a "Cash Election"), $55.95 in
cash, subject to Section 2.1(d)(v) (the "Cash Consideration"), in each case
payable without interest to the holder of such Share upon surrender, in the
manner provided in Section 2.4, of the certificate that formerly evidenced such
Share (each, a "Certificate").
(b) Each Share held in the treasury of Global and each Share owned
directly by Crown or Merger Sub, in each case immediately prior to the
Effective Time, shall be canceled without any conversion thereof, and no
payment or distribution shall be made with respect thereto.
(c) Each limited liability company interest in Merger Sub (the "Merger
Sub Units") issued and outstanding immediately prior to the Effective Time
shall remain outstanding and unaffected by the Merger and, following the
Merger, shall constitute the only outstanding limited liability company
interests or other equity interests in the Surviving Company from and after the
Effective Time.
(d) Election of Merger Consideration.
(i) Each person who, on or prior to the Election Date (as
defined in Section 2.1(d)(ii)), is a record holder of Shares shall be
entitled, with respect to all or any portion of such holder's Shares,
to make a Stock Election or Cash Election on the basis set forth in
this Section 2.1(d). For the avoidance of doubt, a holder of Shares
shall be permitted to make a Stock Election with respect to a portion
of such holder's Shares and make a Cash Election with respect to such
holder's other Shares. If such a holder does not make a Stock Election
or a Cash Election with respect to all or any portion of such holder's
Shares, such holder will be deemed to have made a Stock Election in
the manner herein provided with respect to such Shares.
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(ii) Crown shall prepare and mail, or cause to be prepared
and mailed, with the Joint Proxy Statement (as defined in Section
5.10(a)) (x) a form of election, which form shall be subject to the
reasonable review and comment of Global (the "Form of Election"), (y)
a letter of transmittal (which shall be in customary form and shall
specify that delivery shall be effected, and risk of loss and title to
the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent (as defined in Section 2.4(a)) and
(z) instructions for use in effecting the surrender of the
Certificates pursuant to such letter of transmittal, to the record
holders of Shares as of the record date for the Global Stockholders'
Meeting (as defined in Section 5.10(a)). The Form of Election shall be
used by each record holder of Shares to make an election to receive
the Stock Consideration, the Cash Consideration or both for any or all
Shares held by such holder. Crown and Global shall use their
reasonable best efforts to make the Form of Election, letter of
transmittal and instructions available to all persons who become
holders of Shares during the period between such record date and the
Election Date. Any such holder's election to receive the Stock
Consideration, the Cash Consideration or both shall have been properly
made only if the Exchange Agent shall have received at its designated
office, by 5:00 p.m., New York City time, on the third business day
immediately preceding the Global Stockholders' Meeting (the "Election
Date"), (1) a Form of Election properly completed and signed, (2) a
letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and (3) such other documents
as may be required pursuant to such instructions, together with
Certificates to which such Form of Election and letter of transmittal
relate, duly endorsed in blank or otherwise in form acceptable for
transfer on the books of Global.
(iii) Any stockholder of Global may at any time prior to the
Election Date change his or her election by written notice received by
the Exchange Agent prior to 5:00 p.m., New York City time, on the
Election Date accompanied by a properly completed and signed revised
Form of Election. Any Form of Election may be revoked by the
stockholder submitting it to the Exchange Agent only by written notice
received by the Exchange Agent (A) prior to 5:00 p.m., New York City
time on the Election Date or (B) after such time, if and to the extent
that the Exchange Agent is legally required to permit revocations and
the Effective Time shall not have occurred prior to such time. All
Forms of Election shall automatically be revoked if the Exchange Agent
is notified in writing by Crown and Global that the Merger has been
abandoned. If a Form of Election is revoked, the Certificate or
Certificates to which such Form of Election relates shall be promptly
returned to the stockholder submitting such Form of Election to the
Exchange Agent.
(iv) The determination of the Exchange Agent shall be binding
as to whether or not elections to receive the Stock Consideration or
the Cash Consideration have been properly made, changed or revoked
pursuant to this with respect to Shares and when elections, changes
and revocations were received by it. If the Exchange Agent determines
that any election to
5
receive the Cash Consideration was not properly made with respect to
Shares, such shares shall be treated by the Exchange Agent as shares
for which a Stock Election was made in accordance with this Section
2.1(d), and such shares shall be entitled to receive in the Merger the
Stock Consideration. The Exchange Agent also shall make all
computations as to proration contemplated by Section 2.1(d)(v) (which
computation shall be made as soon as practicable following the
Election Date), and absent manifest error any such computation shall
be conclusive and binding on the holders of Shares. The Exchange Agent
may make such rules as are consistent with this Section 2.1(d) for the
implementation of the elections provided for herein as shall be
necessary or desirable fully to effect such elections.
(v) Notwithstanding anything else in this Agreement to the
contrary, the maximum aggregate amount of Cash Consideration that may
be paid by Crown pursuant to this Agreement shall be $550,000,000 (the
"Cash Consideration Cap"); provided that the Cash Consideration Cap
shall be reduced on a dollar-for-dollar basis to the extent of any
cash dividends or other cash distributions declared or paid by Global
or any Global Subsidiary (as defined in Section 3.2(d)) prior to the
Effective Time (other than (x) dividends and distributions by a direct
or indirect wholly owned Global Subsidiary to its parent (without
further distribution) and (y) the regular quarterly dividend of $0.525
per share of Global Common Stock that is to be paid by Global on or
about October 19, 2006 (the "Global Third Quarter Dividend")). If the
aggregate amount of cash subject to Cash Elections received by the
Exchange Agent (the "Requested Cash Amount") exceeds the Cash
Consideration Cap, each holder making a Cash Election shall receive,
for each Share with respect to which a Cash Election has been made,
(1) cash in an amount equal to the product of the Cash Consideration
and a fraction, the numerator of which is the Cash Consideration Cap
and the denominator of which is the Requested Cash Amount (such
product, the "Prorated Cash Amount") and (2) a number of shares of
Crown Common Stock equal to a fraction, the numerator of which is
equal to the Cash Consideration minus the Prorated Cash Amount and the
denominator of which is $34.75.
Section 2.2 Equity-Based Awards.
(a) At the Effective Time, each Global Restricted Share that is
outstanding and unvested immediately prior to the Effective Time (excluding any
Global Restricted Share that becomes fully vested and nonforfeitable at the
Effective Time in accordance with the terms of the applicable award agreement)
shall, by virtue of the
6
Merger and without any action on the part of the holder thereof, be cancelled
and converted, on the same terms and conditions (including vesting) as applied
to such Global Restricted Share immediately prior to the Effective Time, into
the number of restricted shares of Crown Common Stock (the "Converted
Restricted Shares") that is equal to the Stock Consideration, provided that all
fractional Converted Restricted Shares to which a single holder would be
entitled shall be aggregated.
(b) At the Effective Time, each Global Deferred Share (as defined in
Section 3.2(a)) that is outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted, on the same terms and conditions (including vesting) as
applied to such Global Deferred Share immediately prior to the Effective Time,
into the number of deferred shares with respect to Crown Common Stock (the
"Converted Deferred Shares") that is equal to the Stock Consideration, provided
that all fractional Converted Deferred Shares to which a single holder would be
entitled shall be aggregated.
(c) At the Effective Time, Crown shall assume the obligations and
succeed to the rights of Global under Global's Omnibus Stock Incentive Plan (as
amended December 21, 2005) (the "Omnibus Plan") with respect to the Converted
Restricted Shares and Converted Deferred Shares. Crown shall take all action
reasonably necessary or appropriate to have available for issuance or transfer
a sufficient number of shares of Crown Common Stock for delivery with respect
to the Converted Restricted Shares and the settlement of the Converted Deferred
Shares. Promptly after the Effective Time, Crown shall either (i) prepare and
file with the SEC a registration statement on Form S-8 (or other appropriate
form) registering a number of shares of Crown Common Stock necessary to fulfill
Crown's obligations under this Section 2.2 or (ii) assume the Converted
Restricted Shares and Converted Deferred Shares under an existing equity
incentive plan with respect to which a registration statement on Form S-8 (or
other appropriate form) is effective.
(d) Global shall ensure that following the Effective Time, no holder
of a Global Restricted Share, Global Deferred Share, Global Option (as defined
in Section 2.3(a)) or Global Warrant (as defined in Section 2.3(b)) (or former
holder thereof) or any current or former participant in the Omnibus Plan or any
other Global Benefit Plan (as defined in Section 3.14(a)) or Global Benefit
Agreement (as defined in Section 3.14(a)) shall have any right thereunder to
acquire any capital stock of Global, any Global Subsidiary or the Surviving
Company or any other equity interest therein (including "phantom" stock or
stock appreciation rights).
(e) Prior to the Effective Time, each of Global and Crown shall cause
any dispositions of Global Common Stock (including derivative securities with
respect to Global Common Stock) or acquisitions of Crown Common Stock
(including derivative securities with respect to Crown Common Stock) resulting
from the transactions contemplated by this Agreement by each individual who is
subject to the reporting requirements of Section 16(a) of the Exchange Act (as
defined in Section 3.5) with respect to Global or Crown to be exempt under Rule
16b-3 promulgated under the Exchange Act.
Section 2.3 Options and Warrants.
(a) Options. At the Effective Time, each option entitling the holder
thereof to purchase a share of Global Common Stock (a "Global Option") that is
outstanding at such time, whether or not exercisable and whether or not vested,
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be cancelled and converted, on the same terms and conditions as
applied to such Global Option immediately prior to the Effective Time, into an
option to purchase a number of shares of Crown Common Stock (a "Converted
Option") (rounded down to the nearest whole share) equal to the product of (i)
the number of shares of Global Common Stock subject to such Global Option as of
the Effective Time and (ii) the Stock Consideration, at an exercise price per
share of Crown Common Stock (rounded up to the nearest
7
whole cent) equal to the quotient obtained by dividing (A) the aggregate
exercise price for the shares of Global Common Stock subject to such Global
Option as of the Effective Time by (B) the aggregate number of shares of Crown
Common Stock subject to such Converted Option after giving effect to the
adjustments in this Section 2.3(a).
(b) Warrants. At the Effective Time, each warrant entitling the holder
thereof to purchase a share of Global Common Stock (a "Global Warrant") that is
outstanding at such time, whether or not exercisable and whether or not vested,
granted under the Warrant Agreement, dated February 13, 2006, by and between
Global and American Stock Transfer & Trust Company (the "Warrant Agreement"),
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be cancelled and converted, on the same terms and conditions
(including vesting) as applied to such Global Warrant immediately prior to the
Effective Time, into a warrant entitling such holder thereof to purchase a
number of shares of Crown Common Stock (a "Converted Warrant") (rounded down to
the nearest whole share) equal to the product of (i) the number of shares of
Global Common Stock subject to such Global Warrant as of the Effective Time and
(ii) the Stock Consideration, at an exercise price per share of Crown Common
Stock (rounded up to the nearest whole cent) equal to the quotient obtained by
dividing (A) the aggregate exercise price for the shares of Global Common Stock
subject to such Global Warrant as of the Effective Time by (B) the aggregate
number of shares of Crown Common Stock subject to such Converted Warrant after
giving effect to the adjustments in this Section 2.3(b).
Section 2.4 Exchange of Certificates.
(a) Exchange Agent. At the Effective Time, Crown shall deposit, or
shall cause to be deposited, with a bank or trust company that, prior to the
mailing of the Joint Proxy Statement, may be designated by Crown, and that is
reasonably satisfactory to Global, to act as exchange agent (the "Exchange
Agent"), for the benefit of the holders of Shares, for exchange in accordance
with this ARTICLE II through the Exchange Agent, (i) certificates representing
the shares of Crown Common Stock issuable as the Stock Consideration portion of
the Merger Consideration pursuant to Section 2.1(a), (ii) cash or a check in an
amount of U.S. dollars (after giving effect to any required withholdings
pursuant to Section 2.4(i)) equal to the amount of cash payable as the Cash
Consideration portion of the Merger Consideration pursuant to Section 2.1(a)
and (iii) cash, from time to time as required to make payments in lieu of any
fractional shares pursuant to Section 2.4(e) or with respect to dividends or
other distributions payable pursuant to Section 2.4(c) (such cash and
certificates for shares of Crown Common Stock being hereinafter referred to as
the "Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable
instructions, deliver the shares of Crown Common Stock and cash contemplated to
be issued pursuant to Section 2.1(a) and this Section 2.4(a) out of the
Exchange Fund. Except as contemplated by Section 2.4(g) hereof, the Exchange
Fund shall not be used for any other purpose.
(b) Exchange Procedures. Immediately after the Effective Time, upon
surrender to the Exchange Agent, whether prior to or after the Election Date,
of a Certificate for cancellation, together with a letter of transmittal, duly
completed and validly executed in accordance with the instructions thereto, and
such other documents as may be required pursuant to such instructions, the
holder of such Certificate shall be entitled to receive in exchange
8
therefor: (A) a certificate representing that number of whole shares of Crown
Common Stock which such holder has the right to receive in respect of the
Shares formerly represented by such Certificate after taking into account all
Shares then held by such holder, (B) a check in an amount of U.S. dollars
(after giving effect to any required withholdings pursuant to Section 2.4(i))
equal to the amount of cash to which such holder is entitled pursuant to
Section 2.1(a) and (C) cash in lieu of any fractional shares of Crown Common
Stock to which such holder is entitled pursuant to Section 2.4(e) and any
dividends or other distributions to which such holder is entitled pursuant to
Section 2.4(c), and the Certificate so surrendered shall forthwith be
cancelled. No interest will be paid or will accrue on any cash payable pursuant
to Section 2.4(c) or (e). Unless the duly completed and validly executed letter
of transmittal provides otherwise, for all purposes of this Section 2.4 and in
accordance with Treasury Regulation Section 1.358-2(a)(2)(ii), (i) a holder
will be treated as having surrendered, in exchange for the total Cash
Consideration, if any, to be paid to such holder under Section 2.1(d) (with
respect to a holder, the "Cash Portion"), the number of Shares equal to the
quotient of (x) such holder's Cash Portion, divided by (y) the Cash
Consideration; and (ii) for purposes of clause (i), the Certificates
surrendered by a holder in exchange for such holder's Cash Portion will be
deemed to be: (A) first, of those Certificates evidencing Shares held by such
holder for more than one year before the Merger within the meaning of Section
1223 of the Code, if any, those Certificates with the highest Federal income
Tax basis, in descending order until such Certificates are exhausted or the
Cash Portion for such holder is fully paid, then (B) of all other of such
holder's Certificates, those Certificates with the highest Federal income Tax
basis, in descending order until the Cash Portion for such holder is fully
paid. In the event of a transfer of ownership of Shares that is not registered
in the transfer records of Global, the Merger Consideration to which such
holder is entitled (including, if applicable, a check for cash in lieu of any
fractional shares of Crown Common Stock to which such holder is entitled
pursuant to Section 2.4(e)) and a check for any dividends or other
distributions to which such holder is entitled pursuant to Section 2.4(c) may
be issued to a transferee if the Certificate representing such Shares is
presented to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this
Section 2.4, each Certificate shall be deemed at all times after the Effective
Time to represent only the right to receive upon such surrender the Merger
Consideration, the cash in lieu of any fractional shares of Crown Common Stock
to which such holder is entitled pursuant to Section 2.4(e) and any dividends
or other distributions to which such holder is entitled pursuant to Section
2.4(c).
(c) Distributions with Respect to Unexchanged Shares. No dividends or
other distributions declared or made after the Effective Time with respect to
the Crown Common Stock with a record date after the Effective Time shall be
paid to the holder of any unsurrendered Certificate with respect to the shares
of Global Common Stock formerly represented thereby, until the holder of such
Certificate shall surrender such Certificate. Subject to the effect of escheat,
tax or other applicable Laws, following surrender of any such Certificate,
there shall be paid to the holder of the certificates representing whole shares
of Crown Common Stock issued in exchange therefor, without interest, (i)
promptly, the amount of dividends or other distributions with a record date
after the Effective Time and theretofore paid with respect to such whole shares
of Crown Common Stock, and (ii) at the appropriate payment date, the amount of
dividends or other distributions, with a record date after the Effective Time
but prior to surrender
9
and a payment date occurring after surrender, payable with respect to such
whole shares of Crown Common Stock.
(d) No Further Rights in Global Common Stock. All cash paid and shares
of Crown Common Stock issued upon conversion of the Shares in accordance with
the terms of this ARTICLE II (including any cash paid pursuant to Section
2.4(c) or (e)) shall be deemed to have been paid and issued in full
satisfaction of all rights pertaining to such Shares.
(e) No Fractional Shares. No certificates or script representing
fractional shares of Crown Common Stock shall be issued upon the surrender for
exchange of Certificates, and such fractional shares interests will not entitle
the owner thereof to vote or to any other rights of a stockholder of Crown.
Each holder of Shares exchanged pursuant to the Merger who would otherwise be
entitled to receive a fraction of a share of Crown Common Stock (after taking
into account all Certificates delivered by such holder) shall receive, upon
surrender of such holder's Certificates in accordance with this Section 2.4, an
amount in cash (without interest) equal to the product obtained by multiplying
(i) such fractional share interest to which such holder would otherwise be
entitled by (ii) $34.75. As promptly as practicable after the determination of
the amount of cash, if any, to be paid to holders of fractional share
interests, the Exchange Agent shall so notify Crown, and Crown shall deposit
such amount with the Exchange Agent and shall cause the Exchange Agent to
forward payments to such holders of fractional share interests subject to and
in accordance with the terms of Section 2.4(b).
(f) Adjustments to Merger Consideration. The Merger Consideration
shall be adjusted to reflect appropriately the effect of any forward or reverse
stock split, stock dividend (including any dividend or distribution of
securities convertible into Crown Common Stock or Global Common Stock),
reorganization, recapitalization, reclassification, combination, exchange of
shares or other like change with respect to Crown Common Stock or Global Common
Stock occurring on or after the date hereof and prior to the Effective Time.
The Cash Consideration Cap shall be reduced on a dollar-for-dollar basis to the
extent of any cash dividends or other cash distributions declared or paid by
Global or any Global Subsidiary prior to the Effective Time (other than (x)
dividends and distributions by a direct or indirect wholly owned Global
Subsidiary to its parent (without further distribution) and (y) the Global
Third Quarter Dividend).
(g) Termination of Exchange Fund. Any portion of the Exchange Fund
(including any interest received with respect thereto) that remains
undistributed to the holders of Global Common Stock for six months after the
Effective Time shall be delivered to Crown, upon demand, and shall be held in
trust for the benefit of any holders of Global Common Stock who have not
theretofore complied with this ARTICLE II without any interest thereon, subject
to the effect of escheat, tax or other applicable Law.
(h) No Liability. Neither the Exchange Agent nor any party hereto
shall be liable to any holder of Certificates for any such Shares (or dividends
or distributions with respect thereto), or cash delivered to a public official
pursuant to any abandoned property, escheat or similar Law. If any Certificate
has not been surrendered prior to two years after the Effective Time (or
immediately prior to such earlier date on which Merger Consideration or any
dividends or distributions with respect to Crown Common Stock as contemplated
by Section 2.4(c) in respect of such Certificate would otherwise escheat to or
become the property of any
10
Governmental Entity (as defined in Section 3.5)), any such shares, cash,
dividends or distributions in respect of such Certificate shall, to the extent
permitted by applicable Law, become the property of the Surviving Company, free
and clear of all claims or interest of any person previously entitled thereto.
(i) Withholding Rights. Each of the Surviving Company, Crown and the
Exchange Agent shall be entitled to deduct and withhold from the Merger
Consideration otherwise payable pursuant to this Agreement to any holder of
Shares such amounts as it is required to deduct and withhold with respect to
the making of such payment under the Code, or any provision of federal, state,
local or foreign Tax Law. To the extent that amounts are so withheld by Crown
or the Exchange Agent, as the case may be, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
the Shares in respect to which such deduction and withholding was made by Crown
or the Exchange Agent, as the case may be.
(j) Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
Crown, the posting by such person of a bond, in such reasonable amount as Crown
may direct, as indemnity against any claim that may be made against it with
respect to such Certificate, the Exchange Agent will issue in exchange for such
lost, stolen or destroyed Certificate the Merger Consideration, any cash in
lieu of fractional shares of Crown Common Stock to which the holders thereof
are entitled pursuant to Section 2.4(e) and any dividend or other distributions
to which the holders thereof are entitled pursuant to Section 2.4(c).
(k) Investment of Exchange Fund. The Exchange Agent shall invest any
cash included in the Exchange Fund, as directed by Crown, on a daily basis. Any
interest and other income resulting from such investments shall be paid to
Crown.
Section 2.5 Stock Transfer Books. At the Effective Time, the stock
transfer books of Global shall be closed and there shall be no further
registration of transfers of Shares thereafter on the records of Global. From
and after the Effective Time, the holders of Certificates representing Shares
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such Shares, except as otherwise provided in this
Agreement or by Law. On or after the Effective Time, any Certificates presented
to the Exchange Agent or Crown for any reason shall be converted into the right
to receive the Merger Consideration, any cash in lieu of fractional shares of
Crown Common Stock to which the holders thereof are entitled pursuant to
Section 2.4(e) and any dividends or other distributions to which the holders
thereof are entitled pursuant to Section 2.4(c).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GLOBAL
Global represents and warrants to each of the other parties hereto as
follows (except (i) as set forth in the written disclosure letter (which letter
shall in each case specifically identify by reference to Sections of this
Agreement any exceptions to each of the representations,
11
warranties and covenants contained in this Agreement; provided, however, that
any information set forth in one section or subsection of such disclosure
letter shall be deemed to apply to each other section or subsection thereof or
hereof to which its relevance is readily apparent on its face) delivered by
Global to Crown and Merger Sub in connection with the execution and delivery of
this Agreement (the "Global Disclosure Letter") or (ii) as readily apparent
from disclosure in the Global SEC Reports (as defined in Section 3.7) filed or
furnished to the Securities and Exchange Commission (the "SEC") by Global, and
in either case, publicly available on or prior to the date hereof, but
excluding, in each case, any disclosures set forth in any risk factor section,
in any section relating to forward-looking statements and any other disclosures
included therein to the extent that they are cautionary, predictive or
forward-looking in nature):
Section 3.1 Organization and Standing.
(a) Global is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation. Global has made
available to Crown complete and correct copies of the minutes (or, in the case
of minutes that have not yet been finalized, drafts thereof) of all meetings of
the stockholders of Global and each of the Global Subsidiaries, the boards of
directors of Global and each of the Global Subsidiaries, and the committees of
each such board of directors, in each case held since January 1, 2004 and prior
to the date hereof.
(b) (i) Each Global Subsidiary is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or
organization, and (ii) each of Global and each Global Subsidiary (x) has full
corporate (or similar) power and authority and all necessary government
approvals to own, lease and operate its properties and assets and to conduct
its business as presently conducted, and (y) is duly qualified or licensed to
do business as a foreign corporation, limited partnership, partnership or
limited liability company and is in good standing in each jurisdiction where
the character of the properties owned, leased or operated by it or the nature
of its business makes such qualification or licensing necessary, except in the
case of clauses (b)(i) and (b)(ii), where any such failure has not had, or is
not reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect (as defined in Section 8.12(b)). Global has furnished or made
available to Crown true and complete copies of the Amended and Restated
Certificate of Incorporation of Global, as amended through the date of this
Agreement (as so amended, the "Global Certificate of Incorporation"); the
Second Amended and Restated Bylaws of Global, as amended through the date of
this Agreement (as so amended, the "Global Bylaws"); and the comparable charter
and organizational documents of each Global Subsidiary, in each case as amended
through the date of this Agreement. The Global Certificate of Incorporation and
the Global Bylaws are in full force and effect and have not been amended or
otherwise modified. Global is not in material violation of any provision of the
Global Certificate of Incorporation or the Global Bylaws, and no Global
Subsidiary is in material violation of any provision of its certificate of
incorporation, bylaws or equivalent organizational documents.
For purposes of this Agreement, a "Subsidiary" of any person means
another person, (i) an amount of the voting securities, other voting rights or
voting partnership interests of which that is sufficient to elect at least a
majority of its board of directors or other governing body is directly or
indirectly owned or controlled by such first person or by any one or more of
its Subsidiaries, or by such first person and one or more of its Subsidiaries
(or, if there are no
12
such voting interests, 50% or more of the equity interests of which is owned
directly or indirectly by such first person) or (ii) of which such first person
or any other Subsidiary of such first person is a general partner (excluding
partnerships, the general partnership interests of which held by such first
person and any Subsidiary of such first person do not have a majority of the
voting interests in such partnership).
Section 3.2 Capitalization.
(a) The authorized capital stock of Global consists of (i) 150,000,000
shares of Global Common Stock and (ii) 20,000,000 shares of preferred stock,
par value $0.01 per share (the "Global Preferred Stock"). At the close of
business on September 29, 2006, (A) 70,222,876 shares of Global Common Stock
were issued and outstanding (including 358,365 shares of Global Common Stock
that were outstanding as of the relevant time but were subject to vesting or
other forfeiture restrictions or a right of repurchase by Global as of such
time (shares so subject, "Global Restricted Shares")), (B) 29,327 shares of
Global Common Stock were held by Global in its treasury, (C) 8,715,000 shares
of Global Common Stock were reserved for issuance pursuant to the Omnibus Plan,
of which no shares of Global Common Stock were subject to outstanding and
unexercised options to purchase Global Common Stock, (D) 644,000 shares of
Global Common Stock were subject to outstanding and unexercised Global Options,
(E) 420,220 shares of Global Common Stock were subject to outstanding and
unexercised Global Warrants, and (F) a maximum of 2,887 shares of Global Common
Stock could be issued pursuant to outstanding deferred share awards with
respect to Global Common Stock (each such deferred share award, a "Global
Deferred Share"). At the close of business on September 29, 2006, no shares of
Global Preferred Stock were issued and outstanding and no shares of Global
Preferred Stock were held in the treasury of Global.
(b) Except as set forth in Section 3.2(a) above, at the close of
business on September 29, 2006, no shares of capital stock or other voting
securities of Global were issued, reserved for issuance or outstanding. From
September 29, 2006, until the date of this Agreement, there have been no
issuances by Global of shares of capital stock of, or other equity or voting
interests in, Global, other than the issuance of shares of Global Common Stock
pursuant to the exercise of Global Options and Global Warrants outstanding as
of September 29, 2006, each in accordance with their terms as in effect on
September 29, 2006. Except as set forth in Section 3.2(a), as of the date
hereof, there are no options, warrants, convertible or exchangeable securities,
subscriptions, stock appreciation rights, phantom stock rights or stock
equivalents or other rights, agreements, arrangements or commitments
(contingent or otherwise) of any character issued or authorized by Global or
any Global Subsidiary (i) relating to any issued or unissued capital stock or
equity interest of Global or any Global Subsidiary, (ii) obligating Global or
any Global Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, any shares of capital stock of, or options, warrants,
convertible or exchangeable securities, subscriptions or other equity interests
in, Global or any Global Subsidiary or (iii) that give any person the right to
receive any economic benefit or right similar to or derived from the economic
benefits and rights accruing to holders of capital stock Global or any Global
Subsidiary (each of (i), (ii) and (iii), collectively, the "Global Stock
Rights"). All outstanding shares of Global Common Stock are, and all shares of
Global Common Stock that may be issued prior to the Effective Time will be when
issued, duly authorized, validly issued, fully paid and nonassessable. There
are no outstanding contractual obligations of Global or any Global Subsidiary
to
13
repurchase, redeem or otherwise acquire any capital stock or equity interest of
Global (including any shares of Global Common Stock) or any Global Subsidiary
or any Global Stock Rights or to pay any dividend or make any other
distribution in respect thereof or to provide funds to, or make any investment
(in the form of a loan, capital contribution or otherwise) in, any person.
(c) Section 3.2(c) of the Global Disclosure Letter sets forth a true,
complete and correct list, as of September 29, 2006, of (i) all Global Options,
the number of shares of Global Common Stock subject thereto, the grant dates,
expiration dates, the exercise or base prices and vesting schedules thereof and
the names of the holders thereof, (ii) all outstanding Global Warrants, the
number of shares of Global Common Stock subject thereto, the grant dates,
expiration dates, the exercise or base prices and vesting schedules thereof and
the names of the holders thereof, (iii) all outstanding Global Restricted
Shares, the grant dates, vesting schedules, repurchase prices (if any) and
names of the holders thereof and (iv) all outstanding Global Deferred Shares,
the maximum number of shares of Global Common Stock that may be issued pursuant
to each such Global Deferred Share, the grant dates, vesting schedules and
names of the holders thereof. Each outstanding Global Restricted Share, Global
Deferred Share, Global Option and Global Warrant may, pursuant to its terms, be
treated at the Effective Time as set forth in Section 2.2 or 2.3, as
applicable.
(d) Exhibit 21.1 to Global's Annual Report on Form 10-K for the fiscal
year ended December 31, 2005 includes all the Subsidiaries of Global (each a
"Global Subsidiary" and together, the "Global Subsidiaries") in existence as of
the date hereof. All the outstanding shares of capital stock of, or other
equity interests in, each such Global Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable and are, except as set
forth in such Exhibit 21.1, owned directly or indirectly by Global, free and
clear of all pledges, claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever (collectively, "Liens") and free of
any other restriction (including any restriction on the right to vote, sell or
otherwise dispose of such capital stock or other ownership interests), except
for restrictions imposed by applicable securities laws. Neither Global nor any
of the Global Subsidiaries directly or indirectly owns or has any right or
obligation to subscribe for or otherwise acquire any equity or similar interest
in, or any interest convertible into or exchangeable or exercisable for, any
corporation, partnership, joint venture or other business association or entity
(other than the Global Subsidiaries).
Section 3.3 Authority for Agreement.
(a) Global has all necessary corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and, subject
to obtaining the Global Stockholder Approval (as defined below) in connection
with this Agreement and the Merger, to consummate the Merger and the other
transactions contemplated by this Agreement. The execution, delivery and
performance by Global of this Agreement and the consummation by Global of the
Merger and the other transactions contemplated by this Agreement, have been
duly authorized by all necessary corporate action on the part of Global and no
other corporate proceedings on the part of Global are necessary to authorize
this Agreement or to consummate the Merger or the other transactions
contemplated by this Agreement (other than obtaining the Global Stockholder
Approval and the filing and recordation of appropriate merger documents as
required by the DGCL and the DLLC Act). This Agreement has been duly executed
and
14
delivered by Global and, assuming the due authorization, execution and
delivery by Crown and Merger Sub, constitutes a legal, valid and binding
obligation of Global enforceable against Global in accordance with its terms
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally and to the effect of general principles of equity. The
affirmative vote of a majority of the outstanding shares of Global Common Stock
entitled to vote in accordance with the DGCL, the Global Certificate of
Incorporation and the Global Bylaws (the "Global Stockholder Approval") is the
only vote of the holders of capital stock of Global necessary to adopt and
approve this Agreement, the Merger and the other transactions contemplated by
this Agreement.
(b) The Global Board, at a meeting duly called and held, duly and
unanimously adopted resolutions (i) approving this Agreement and the other
Transaction Agreements, the Merger and the other transactions contemplated by
this Agreement, (ii) determining that the terms of the Merger and the other
transactions contemplated by this Agreement are fair to and in the best
interests of Global and its stockholders, (iii) recommending that Global's
stockholders adopt this Agreement and (iv) declaring that this Agreement is
advisable. Such resolutions are sufficient to render inapplicable to Crown and
Merger Sub, this Agreement, the Merger and the other transactions contemplated
by this Agreement, and the other Transaction Agreements and the transactions
contemplated thereby, the restrictions set forth in Article IV, Part D of the
Global Certificate of Incorporation. The provisions of Section 203 of the DGCL
are inapplicable to Crown and Merger Sub, this Agreement, the Merger and the
other transactions contemplated by this Agreement by virtue of the express
election of Global set forth in the Global Certificate of Incorporation not to
be governed by Section 203 of the DGCL. To Global's knowledge, no other state
takeover statute or similar statute or regulation applies or purports to apply
to Global with respect to this Agreement, the Merger or any other transaction
contemplated by this Agreement or the other Transaction Agreements and the
transactions contemplated thereby.
(c) Xxxxxxx, Xxxxx & Co., the financial advisor to the Global Board
(the "Global Financial Advisor"), has delivered to the Global Board its opinion
to the effect that, as of the date of such opinion and based on the
assumptions, qualifications and limitations contained therein, the Merger
Consideration is fair, from a financial point of view, to the holders of Global
Common Stock. Global has made available to Crown, for informational purposes
only, a correct and complete copy of the form of such opinion prior to the
execution of this Agreement.
Section 3.4 No Conflict. The execution and delivery of this Agreement
by Global do not, and the performance of this Agreement by Global and the
consummation of the Merger and the other transactions contemplated by this
Agreement will not, (a) assuming the Global Stockholder Approval is obtained,
conflict with or violate (i) the Global Certificate of Incorporation or the
Global Bylaws or (ii) the equivalent organizational documents of any of the
Global Subsidiaries, (b) subject to Section 3.5 and assuming the Global
Stockholder Approval is obtained, conflict with or violate any United States
federal, state or local or any foreign statute, law, rule, regulation,
ordinance, code or any other requirement or rule of law (a "Law") or any
charge, order, writ, injunction, judgment, decree, ruling, determination,
directive, award or settlement, whether civil, criminal or administrative (an
"Order"), in each case applicable to Global or any of the Global Subsidiaries
or by which any property or asset of Global or any of
15
the Global Subsidiaries is bound or affected, or (c) result in a breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, give to others any right of termination,
amendment, acceleration or cancellation of, result in the triggering of any
payment or other obligation or any right of consent, or result in the creation
of a Lien on any property or asset of Global or any of the Global Subsidiaries
pursuant to any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Global or
any of the Global Subsidiaries is a party or by which Global or any of the
Global Subsidiaries or any property or asset of any of them is bound or
affected (including any Global Material Contract (as defined in Section
3.12(a)), except, in the case of clauses (a)(ii), (b) and (c) above, for any
such conflicts, violations, breaches, defaults or other occurrences which have
not had and are not reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 3.5 Required Filings and Consents. The execution and delivery
of this Agreement by Global do not, and the performance of this Agreement by
Global will not, require any consent, approval, order, authorization or permit
of, or declaration, registration, filing with, or notification to, any United
States federal, state or local or any foreign government or any court,
administrative or regulatory agency or commission or other governmental
authority or agency, domestic or foreign (a "Governmental Entity"), except for
(i) applicable requirements, if any, of (A) the Securities Act of 1933, as
amended (the "Securities Act"), and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including, without limitation, the filing with
the SEC of the Joint Proxy Statement and of the Registration Statement (as
defined in Section 5.10(a)) in which the Joint Proxy Statement will be included
as a prospectus, and declaration of effectiveness of the Registration
Statement, (B) state securities or "blue sky" laws, (C) the DGCL and the DLLC
Act to file the Certificate of Merger or other appropriate documentation and
(D) the New York Stock Exchange (the "NYSE"), (ii) those required by the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (iii) such filings and approvals as are required to be made or obtained
under any foreign antitrust, competition or similar Laws in connection with the
consummation of the Merger and the other transactions contemplated by this
Agreement, (iv) the filing of customary applications and notices, as
applicable, (A) with the Federal Aviation Administration (the "FAA"), and any
approvals of such applications and notices, or (B) with the Federal
Communications Commission (the "FCC") under the Communications Act of 1934, as
amended (the "Communications Act"), and any approvals of such applications and
notices, which, in the case of this clause (iv), are required or appropriate
with respect to the transactions contemplated by this Agreement and related to
Global's ownership or operation of communications or broadcast towers and the
assets and properties relating thereto and (v) customary filings, notices and
approvals with any state public service, public utility commissions, state
environmental agencies or similar state regulatory bodies with respect to the
transactions contemplated by this Agreement and related to the consummation of
the Merger and the other transactions contemplated by this Agreement as a
result of Global's ownership or operation of communications or broadcast towers
and the assets and properties relating thereto.
Section 3.6 Compliance; Regulatory Compliance.
(a) Each of Global and the Global Subsidiaries (i) has been operated
at all times in compliance with all Laws applicable to Global or any of the
Global Subsidiaries or by
16
which any property, business or asset of Global or any of the Global
Subsidiaries is bound or affected and (ii) is not in default or violation of
any governmental licenses, permits or franchises to which Global or any of the
Global Subsidiaries is a party or by which Global or any of the Global
Subsidiaries or any property or asset of Global or any of the Global
Subsidiaries is bound or affected other than, in the case of clauses (i) and
(ii) above, failures to comply, defaults or violations which do not have and
are not reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect. Neither Global nor any Global Subsidiary has received
any written communication during the past two years from a Governmental Entity
that alleges that Global or a Global Subsidiary is not in compliance with any
applicable Law, except for failures to be in compliance that, individually or
in the aggregate, have not had and are not reasonably expected to have a
Material Adverse Effect.
(b) Each of Global and the Global Subsidiaries has in effect all
required governmental licenses, permits, certificates, approvals and
authorizations necessary for the conduct of their business and the use of their
properties and assets, as presently conducted and used, except where such
failure has not had, or is not reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect; and neither Global nor any Global
Subsidiary has received notice from any Governmental Entity that any such
license, permit, certificate, approval or authorization is subject to any
adverse action which has had, or is reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect.
(c) This Section 3.6 does not relate to Tax matters, employee benefits
matters, labor relations matters, environmental matters, intellectual property
matters or matters related to the Foreign Corrupt Practices Act and
international trade sanctions, which are the subjects of Sections 3.9, 3.14,
3.15, 3.16, 3.17 and 3.21, respectively.
Section 3.7 SEC Filings; Financial Statements.
(a) Each of Global and the Global Subsidiaries has filed all forms,
reports, statements and documents required to be filed with the SEC since June
2, 2004 (the "Global SEC Reports"), each of which has complied in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations promulgated thereunder, the Exchange Act and the rules and
regulations promulgated thereunder, and the Xxxxxxxx-Xxxxx Act of 2002 (the
"Xxxxxxxx-Xxxxx Act") and the rules and regulations promulgated thereunder,
each as in effect on the date so filed, except to the extent updated, amended,
restated or corrected by a subsequent Global SEC Report filed or furnished to
the SEC by Global, and in either case, publicly available prior to the date
hereof (each, a "Global Filed SEC Report"). None of the Global SEC Reports
(including any financial statements or schedules included or incorporated by
reference therein) contained when filed or currently contains, and any Global
SEC Reports filed with the SEC subsequent to the date hereof will not contain,
any untrue statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
to the extent updated, amended, restated or corrected by a subsequent Global
Filed SEC Report.
(b) Except to the extent updated, amended, restated or corrected by a
subsequent Global Filed SEC Report, all of the financial statements included in
the Global SEC
17
Reports, in each case, including any related notes thereto, as filed with the
SEC (those filed with the SEC are collectively referred to as the "Global
Financial Statements"), comply as to form in all material respects with
applicable accounting requirements and the published rules of the SEC with
respect thereto and have been prepared in accordance with U.S. generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto or, in the case of the unaudited statements, as may be permitted by
Form 10-Q of the SEC and subject, in the case of the unaudited statements, to
normal, year-end audit adjustments which are not reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect). The condensed
consolidated balance sheets (including the related notes) included in such
Global Financial Statements (if applicable, as updated, amended, restated or
corrected in a subsequent Global Filed SEC Report) fairly present, in all
material respects, the condensed consolidated financial position of Global and
the Global Subsidiaries at the respective dates thereof, and the condensed
consolidated statements of operations, stockholders' equity and cash flows (in
each case, including the related notes) included in such Global Financial
Statements (if applicable, as updated, amended, restated or corrected in a
subsequent Global Filed SEC Report) fairly present, in all material respects,
the condensed consolidated statements of operations, stockholders' equity and
cash flows of Global and the Global Subsidiaries for the periods indicated,
subject, in the case of the unaudited statements, to normal, year-end
adjustments which are not reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect.
(c) Neither Global nor any of the Global Subsidiaries has any
liabilities or obligations of any kind whatsoever, whether or not accrued and
whether or not contingent or absolute, that are material to Global and the
Global Subsidiaries, taken as a whole, other than (i) liabilities or
obligations disclosed or provided for in the unaudited condensed consolidated
balance sheet of Global as of June 30, 2006, including the notes thereto,
contained in the Global SEC Reports, (ii) liabilities or obligations incurred
on behalf of Global in connection with this Agreement and the contemplated
Merger, (iii) liabilities or obligations incurred in the ordinary course of
business consistent with past practice since June 30, 2006, and (iv) other
liabilities or obligations that are otherwise covered by insurance.
(d) Each of the principal executive officer of Global and the
principal financial officer of Global (or each former principal executive
officer of Global and each former principal financial officer of Global, as
applicable) has made all certifications required by Rule 13a-14 or 15d-14 under
the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with
respect to the Global SEC Reports, and the statements contained in such
certifications are true and accurate. For purposes of this Agreement,
"principal executive officer" and "principal financial officer" shall have the
meanings given to such terms in the Xxxxxxxx-Xxxxx Act. Neither Global nor any
of the Global Subsidiaries has any outstanding, or has arranged any
outstanding, "extensions of credit" to directors or executive officers within
the meaning of Section 402 of the Xxxxxxxx-Xxxxx Act.
(i) Global maintains a system of "internal control over
financial reporting" (as defined in Rules 13a-15(f) and 15d-15(f)
under the Exchange Act) sufficient to provide reasonable assurance (A)
that transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP, consistently applied,
(B) that transactions are executed only in accordance with the
authorization of
18
management and (C) regarding prevention or timely detection of the
unauthorized acquisition, use or disposition of Global's assets.
(ii) Global's "disclosure controls and procedures" (as
defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) are
reasonably designed to ensure that all information (both financial and
non-financial) required to be disclosed by Global in the reports that
it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the rules
and forms of the SEC, and that all such information is accumulated and
communicated to Global's management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications
of the chief executive officer and chief financial officer of Global
required under the Exchange Act with respect to such reports.
(iii) Neither Global nor any of the Global Subsidiaries is a
party to, or has any commitment to become a party to, any joint
venture, off-balance sheet partnership or any similar contract
(including any contract or arrangement relating to any transaction or
relationship between or among Global or any of the Global
Subsidiaries, on the one hand, and any unconsolidated affiliate,
including any structured finance, special purpose or limited purpose
entity or person, on the other hand, or any "off-balance sheet
arrangements" (as defined in Item 303(a) of Regulation S-K of the
SEC), where the result, purpose or intended effect of such contract is
to avoid disclosure of any material transaction involving, or material
liabilities of, Global or any of the Global Subsidiaries in Global's
or such Global Subsidiary's published financial statements or other
Global SEC Reports.
(iv) Since June 2, 2004, Global has not received any oral or
written notification of any (x) "significant deficiency" or (y)
"material weakness" in Global's internal controls over financial
reporting. There is no outstanding "significant deficiency" or
"material weakness" which Global's independent accountants certify has
not been appropriately and adequately remedied by Global. For purposes
of this Agreement, the terms "significant deficiency" and "material
weakness" shall have the meanings assigned to them in Release 2004-001
of the Public Company Accounting Oversight Board, as in effect on the
date hereof.
(e) The effectiveness of any additional SEC disclosure requirement
that, as of the date of this Agreement, has been formally proposed that is not
yet in effect, is not expected by Global to lead to any materially adverse
change in Global's disclosures as set forth in the Global SEC Reports.
(f) None of the Global Subsidiaries is, or has at any time since June
2, 2004 been, subject to the reporting requirements of Sections 13(a) and 15(d)
of the Exchange Act.
Section 3.8 Absence of Certain Changes or Events. Except as
contemplated by this Agreement, since the date of the most recent audited
financial statements included in the Global SEC Reports and through the date
hereof, each of Global and the Global Subsidiaries has conducted its respective
businesses only in the ordinary course in all material respects and in a manner
consistent with prior practice in all material respects and there has not been
any event or
19
occurrence of any condition that has had or is reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. Except as
contemplated by this Agreement, since the date of the most recent audited
financial statements included in the Global SEC Reports and through the date
hereof, there has not been (i) any material change in accounting methods,
principles or practices employed by Global or (ii) any action of the types
described in Section 5.1(b) or Section 5.1(c) which, had such action been taken
after the date of this Agreement, would be in violation of any such Section.
Section 3.9 Taxes.
(a) Each of Global and the Global Subsidiaries has duly filed all Tax
Returns (as defined in Section 3.9(j)), required to be filed by it or has been
granted extensions to file such Tax Returns, which extensions have not expired,
and all such Tax Returns are true, complete and accurate, except to the extent
that all such failures to file, taken together, have not had and are not
reasonably expected to have a Material Adverse Effect. Global and each of the
Global Subsidiaries have paid (or Global has paid on its behalf) all Taxes (i)
shown as due on such Tax Returns or (ii) otherwise due and payable, except for
those Taxes (x) being contested in good faith by appropriate proceedings and
for which adequate reserves have been established in the financial statements
included in the Global SEC Reports in accordance with GAAP or (y) that have not
had and are not reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect. There are no Liens for any Taxes upon the assets of
Global or the Global Subsidiaries, other than (i) statutory Liens for Taxes not
yet due and payable, (ii) Liens for Taxes contested in good faith by
appropriate proceedings and (iii) Liens that are not, and are not reasonably
expected to be, material to the businesses of Global and the Global
Subsidiaries, taken as a whole.
(b) Global (i) for each taxable period beginning with its date of
formation through its most recent taxable year ended on or before the date
hereof, has been subject to taxation as a real estate investment trust within
the meaning of Sections 856 et seq. of the Code (a "REIT") and has satisfied
all the requirements to qualify as a REIT for such years, (ii) has operated
consistent with all the requirements for qualification and taxation as a REIT
through the date hereof for the period from the end of its most recent taxable
year ended before the date hereof, (iii) has not taken any action or omitted to
take any action that is reasonably expected to result in a successful challenge
by the Internal Revenue Service to its status as a REIT, and no such challenge
is pending, or to Global's knowledge, threatened and (iv) intends to continue
to operate in such a manner as to permit it to continue to qualify as a REIT
for the taxable year or portion thereof that will end with the Merger. Each
Global Subsidiary that files Tax Returns as a partnership or is a disregarded
entity for U.S. federal income tax purposes has since its acquisition by Global
been classified for U.S. federal income tax purposes as either a partnership or
disregarded entity and not as an association taxable as a corporation, or a
"publicly traded partnership" within the meaning of Section 7704(b) of the Code
that is treated as a corporation for U.S. federal income tax purposes under
Section 7704(a) of the Code. Each Global Subsidiary that is a corporation has
been since its formation classified as a qualified REIT subsidiary under
Section 856(i) of the Code or a taxable REIT subsidiary under Section 856(l) of
the Code (a "TRS"). No Global Subsidiary is classified as or files Tax Returns
as a REIT under Sections 856 through 860 of the Code or as a regular "C"
Corporation that is not treated as a TRS. Global has not engaged, directly or
indirectly, in any action that resulted in any "prohibited transaction"
20
Tax pursuant to Section 857(b)(6) of the Code, any Tax on certain non-arm's
length transactions pursuant to Section 857(b)(7) of the Code or any Tax
pursuant to Section 4981 of the Code.
(c) Global had at least $280,700,000 of "net operating loss
carryovers" within the meaning of Section 172 of the Code as of December 31,
2005, which are subject to limitations pursuant to Section 382 of the Code as
of the date hereof.
(d) No Tax Return of Global or a Global Subsidiary is or has ever been
audited or examined by any tax authority, and no notice of such an audit or
examination has been received by Global or a Global Subsidiary. No deficiencies
for any Taxes have been proposed, asserted or assessed in writing against
Global or any of the Global Subsidiaries that are not adequately reserved for,
except for deficiencies that, individually or in the aggregate, have not had
and are not reasonably expected to have a Material Adverse Effect, and no
requests for waivers of the time to assess any such taxes have been granted or
are pending (other than with respect to years that are currently under
examination by the Internal Revenue Service or other applicable taxing
authorities).
(e) Neither Global nor any of the Global Subsidiaries has taken any
action or has any knowledge of any fact or circumstance that is reasonably
likely to prevent the transactions contemplated hereby, including the Merger,
from qualifying as a reorganization within the meaning of Section 368 of the
Code.
(f) Neither Global nor any of the Global Subsidiaries has constituted
either a "distributing corporation" or a "controlled corporation" (within the
meaning of Section 355(a)(1)(A)) in a distribution of stock qualifying for
tax-free treatment under Section 355 of the Code (i) in the two years prior to
the date of this Agreement or (ii) in a distribution which could otherwise
constitute part of a "plan" or "series of related transactions" (within the
meaning of Section 355(e) of the Code) in conjunction with the Merger.
(g) Neither Global nor any of the Global Subsidiaries has entered into
a "listed transaction" within the meaning of Treasury Regulation ss.
1.6011-4(b)(2).
(h) Global and the Global Subsidiaries have complied with all
applicable Laws relating to the payment and withholding of Taxes, except where
a failure to comply, individually or in the aggregate, has not had and is not
reasonably expected to have a Material Adverse Effect.
(i) Neither Global nor any of the Global Subsidiaries has any
liability for the Taxes of any person (other than Global and the Global
Subsidiaries) under Treasury Regulation ss. 1.1502-6 (or any similar provision
of any state, local or foreign law) as a transferee or successor, by contract
or otherwise that, individually or in the aggregate, has had or is reasonably
expected to have a Material Adverse Effect.
(j) As used in this Agreement (A) "Tax" means any federal, state,
local or foreign income, gross receipts, property, sales, use, value-added,
license, excise, franchise, employment, payroll, premium, withholding,
alternative or added minimum, ad valorem, transfer or excise tax, or any other
tax, duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any related interest, penalty, addition to tax or
additional amount,
21
and any liability for any of the foregoing as transferee, and (B) "Tax Return"
means any report, return, document, declaration or other information or filing
required to be filed with respect to taxes (whether or not a payment is
required to be made with respect to such filing), including information
returns, any documents with respect to or accompanying payments of estimated
taxes, or with respect to or accompanying requests for the extension of time in
which to file any such report, return, document, declaration or other
information.
Section 3.10 Change of Control Agreement; No Excess Parachute Payment.
(a) Neither the execution and delivery of this Agreement, the
consummation of the Merger or the other transactions contemplated by this
Agreement nor compliance with the terms hereof will (either alone or in
conjunction with any other event) (i) entitle any current or former employee,
officer, director or consultant of Global or any Global Subsidiary (each, a
"Global Participant") to enhanced severance or termination pay, change in
control or similar payments or benefits, (ii) result in, cause the accelerated
vesting or delivery of, or increase the amount or value of, any payment or
benefit to any Global Participant, (iii) trigger any payment or funding
(through a grantor trust or otherwise) of any compensation or benefits under,
increase the amount payable or trigger any other material obligation pursuant
to, or increase the cost of, any Global Benefit Plan or Global Benefit
Agreement or (iv) result in any breach or violation of, or a default under, any
Global Benefit Plan or Global Benefit Agreement. The aggregate amount of all
cash payments that may become payable or be provided to any Global Participant
under the Global Benefit Plans and Global Benefit Agreements (assuming for such
purpose that such individual's employment were terminated immediately following
the Effective Time as if the Effective Time were the date hereof) will not
exceed the amount set forth in Section 3.10(a) of the Global Disclosure Letter.
(b) Other than payments that may be made to persons set forth on
Section 3.10(b) of the Global Disclosure Letter (the "Primary Company
Executives"), Global reasonably anticipates no amount or other entitlement that
could be received (whether in cash or property or the vesting of property) as a
result of the Merger or any other transaction contemplated by this Agreement
(alone or in combination with any other event) by any Global Participant who is
a "disqualified individual" (as such term is defined in Treasury Regulation
Section 1.280G-1) under any Global Benefit Plan, Global Benefit Agreement or
other compensation arrangement would be characterized as an "excess parachute
payment" (as such term is defined in Section 280G(b)(1) of the Code), and no
such disqualified individual is entitled to receive any additional payment
(e.g., any Tax gross up or other payment) from Global, Crown or any other
person in the event that the excise Tax required by Section 4999(a) of the Code
is imposed on such disqualified individual. Section 3.10(b) of the Global
Disclosure Letter sets forth (i) a complete and accurate list of Global's
reasonable, good faith estimate of the maximum amount that could be received
(whether in cash or property or the vesting of property, and including the
amount of any Tax gross up) by each Primary Company Executive as a result of
the Merger or any other transaction contemplated by this Agreement (alone or in
combination with any other event) under all Global Benefit Agreements and
Global Benefit Plans and (ii) the "base amount" (as defined in Section
280G(b)(3) of the Code) for each Primary Company Executive, calculated as of
the date of this Agreement.
Section 3.11 Litigation.
22
(a) There is no claim, suit, action, investigation, indictment or
information, or administrative, arbitration or other proceeding ("Litigation")
pending or, to the knowledge of Global, threatened against or affecting Global
or any of the Global Subsidiaries or any of their respective assets which, if
adversely determined, individually or in the aggregate, has had or is
reasonably expected to have a Material Adverse Effect.
(b) There is not any Order of any Governmental Entity or arbitrator
outstanding against, or, to the knowledge of Global, investigation by, any
Governmental Entity involving Global or any of the Global Subsidiaries or any
of their respective assets that, individually or in the aggregate, has had or
is reasonably expected to have a Material Adverse Effect.
(c) This Section 3.11 does not relate to Tax matters, employee
benefits matters, labor relations matters, environmental matters or
intellectual property matters, which are the subjects of Sections 3.9, 3.14,
3.15, 3.16, and 3.17, respectively.
Section 3.12 Contracts and Commitments.
(a) Section 3.12(a) of the Global Disclosure Letter sets forth a true
and complete list as of the date hereof of each Global Material Contract.
"Global Material Contract" means (i) a "material contract", as such term is
defined in Section 601(b)(10) of Regulation S-K of the SEC, (ii) a contract,
agreement or arrangement which contains any non-compete or exclusivity
provisions with respect to the business of or geographic area with respect to
Global or any Global Subsidiary, or restricts the conduct of the business of
Global or any Global Subsidiary, or the geographic area or manner in which
Global or any Global Subsidiary may conduct business, in each case in any
material respect, (iii) a contract, agreement or arrangement between Global or
any Global Subsidiary on the one hand, and any officer or director of Global or
any person directly or indirectly owning, controlling or holding power to vote
5% or more of Global's outstanding voting securities (other than compensation
arrangements involving a director or officer of Global listed or described in
Section 3.14 of the Global Disclosure Letter), on the other hand, or (iv) a
contract, agreement or arrangement to which Global or any Global Subsidiary or
any of their respective properties is subject that (A) involves annual revenue
to Global or the Global Subsidiaries in excess of $5,000,000 in the calendar
year ending December 31, 2006, (B) obligates Global or any Global Subsidiary to
expend an amount in excess of $5,000,000 in the calendar year ending December
31, 2006, (C) obligates Global or any Global Subsidiary to make capital
expenditures or acquire assets (including by way of construction, including in
a "build to suit" or similar agreement, or acquisition of communications
towers) in an amount estimated by Global as of the date hereof to be in excess
of $5,000,000 over the remaining life of such contract or (D) is a material
arrangement governing the legal relationship between Global or any Global
Subsidiary and one of the ten largest customers of Global and any Global
Subsidiaries, taken as a whole, for the calendar year ended December 31, 2005.
Global has delivered or made available true and complete copies of all such
agreements, arrangements and commitments to Crown.
(b) Except as is not reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect, the Global Material Contracts are
legal, valid, binding and enforceable in accordance with their respective terms
with respect to Global and, to the
23
knowledge of Global, with respect to each other party to any of such Global
Material Contracts, except, in each case, to the extent that enforcement of
rights and remedies created by any Global Material Contracts are subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar Laws of general application related to or affecting creditors' rights
and to general equity principles. There are no existing defaults, violations or
breaches by Global or any Global Subsidiary of any notes, bonds, mortgages,
indentures, contracts, agreements or leases to which Global or any of the
Global Subsidiaries is a party or by which Global or any of the Global
Subsidiaries or any property or asset of Global or any of the Global
Subsidiaries is bound or affected, including any Global Material Contract (or
events or conditions which, with notice or lapse of time or both would
constitute such a default, violation or breach) and, to the knowledge of
Global, there are no such defaults, violations or breaches (or events or
conditions which, with notice or lapse of time or both, would constitute such a
default, violation or breach) with respect to any third party to any such
notes, bonds, mortgages, indentures, contracts, agreements or leases that, in
any such case, has had or is reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect. Global has no knowledge of any
pending or threatened bankruptcy, insolvency or similar proceeding with respect
to any party to any Global Material Contract which has had or is reasonably
expected to have a Material Adverse Effect. Section 3.12(b)(i) of the Global
Disclosure Letter identifies each Global Material Contract set forth therein
that requires the consent of or notice to the other party thereto to avoid any
material breach, default or violation of such contract, agreement or other
instrument in connection with the transactions contemplated hereby. Neither
Global nor any Global Subsidiary (i) is a party to any voting agreement with
respect to the voting of any securities of Global or (ii) has any contractual
obligation to file a registration statement under the Securities Act, in
respect of any securities of Global or any Global Subsidiary.
(c) Section 3.12(c) of the Global Disclosure Letter sets forth a list
of all confidentiality agreements, standstill agreements or other similar
agreements to which Global or any of the Global Subsidiaries is a party
relating to any Global Takeover Proposal (as defined in Section 5.6(a)), or
relating to any inquiry, proposal or offer from Global to any person relating
to, or that is reasonably expected to lead to, any direct or indirect
acquisition or purchase by Global, in one transaction or a series of
transactions, of assets or businesses (including by merger, acquisition of
capital stock or otherwise) that, if consummated, would be material to Global
and the Global Subsidiaries, taken as a whole. To the extent permitted by the
terms thereof, Global has provided copies of each such agreement or a summary
of the material terms thereof to Crown prior to the date hereof.
Section 3.13 Information Supplied. None of the information supplied or
to be supplied by Global specifically for inclusion or incorporation by
reference in (i) the Registration Statement will, at the time the Registration
Statement is filed with the SEC, at any time it is amended or supplemented or
at the time it becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) the Joint Proxy Statement will, at the date it is first mailed to Global's
stockholders or Crown's stockholders or at the time of the Global Stockholders
Meeting or the Crown Stockholders Meeting, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Joint Proxy
Statement will comply as to form in all material
24
respects with the requirements of the Exchange Act and the rules and
regulations thereunder, except that no representation is made by Global with
respect to statements made or incorporated by reference therein based on
information supplied by Crown or Merger Sub specifically for inclusion or
incorporation by reference in the Joint Proxy Statement.
Section 3.14 Employee Benefit Plans.
(a) Section 3.14(a)(i) of the Global Disclosure Letter sets forth a
list, as of the date hereof, of all "employee pension benefit plans" (as
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) (sometimes referred to individually as a "Global Pension
Plan" and collectively as the "Global Pension Plans), all "employee welfare
benefit plans" (as defined in Section 3(1) of ERISA) (sometimes referred to
individually as a "Global Welfare Plan" and collectively as the "Global Welfare
Plans"), and each vacation or paid time off, severance, termination, retention,
change in control, employment, incentive compensation, performance, profit
sharing, stock-based, stock-related, stock option, fringe benefit, perquisite,
stock purchase, stock ownership, phantom stock and deferred compensation plan,
arrangement, agreement and understanding and other compensation, benefit and
fringe benefit plans, arrangements, agreements and understandings (whether or
not legally binding), sponsored, maintained, contributed to or required to be
sponsored, maintained or contributed to, by Global, any Global Subsidiary or
any other person that, together with Global, is treated as a single employer
under Section 414(b), (c), (m) or (o) of the Code or any other applicable Law
(each, a "Commonly Controlled Entity"), in each case, providing benefits to any
Global Participant, but not including the Global Benefit Agreements (all such
plans, arrangements, agreements and understandings, collectively, "Global
Benefit Plans"). Section 3.14(a)(ii) of the Global Disclosure Letter sets forth
a list, as of the date hereof, of (i) each employment, deferred compensation,
change in control, severance, termination, employee benefit, loan,
indemnification, consulting or similar contract between Global or any Global
Subsidiary, on the one hand, and any Global Participant, on the other hand, and
(ii) each contract between Global or any Global Subsidiary, on the one hand,
and any Global Participant, on the other hand, the benefits of which are
contingent, or the terms of which are materially altered, upon the occurrence
of a transaction involving Global of the nature contemplated by this Agreement
(all such contracts under the foregoing clauses (i) and (ii), collectively,
"Global Benefit Agreements").
(b) Global has made available to Crown true and complete copies of (i)
each Global Benefit Plan and each Global Benefit Agreement (or, in the case of
any unwritten Global Benefit Plan or Global Benefit Agreement, a written
summary of the material provisions of such plan or agreement) in effect on the
date hereof, (ii) the most recent report on Form 5500 filed with the Internal
Revenue Service with respect to each Global Benefit Plan in effect on the date
hereof, to the extent any such report was required by applicable Law, (iii) the
most recent summary plan description for each Global Benefit Plan for which
such a summary plan description is required by applicable Law and (iv) each
currently effective trust agreement or other funding vehicle relating to any
Global Benefit Plan. Neither Global nor any Commonly Controlled Entity has
sponsored, maintained, contributed to or been obligated to sponsor, maintain or
contribute to, or has any actual or contingent liability under, any benefit
plan that is subject to Title IV of ERISA or Section 412 of the Code or is
otherwise a defined benefit pension plan or is a plan described in Section
3(40) of ERISA or Section 413 of the Code. With respect
25
to any Global Welfare Plan or any Global Benefit Agreement that is an employee
welfare benefit plan, (A) no such Global Welfare Plan or Global Benefit
Agreement is unfunded or funded through a "welfare benefits fund" (as such term
is defined in Section 419(e) of the Code) or is self-insured, (B) each such
Global Welfare Plan and Global Benefit Agreement that is a "group health plan"
(as such term is defined in Section 5000(b)(1) of the Code) complies with the
applicable requirements of Section 4980B(f) of the Code and any applicable
similar state or local Law and (C) each such Global Welfare Plan and Global
Benefit Agreement that is a group health plan (including any such plan or
agreement covering retirees or other former employees) may be amended or
terminated without material liability to Global or any Global Subsidiary on or
at any time after the Effective Time. No Global Welfare Plan or Global Benefit
Agreement that is an employee welfare benefit plan provides benefits to, or on
behalf of, any former employee after the termination of employment except (1)
where the full cost of such benefit is borne entirely by the former employee
(or his eligible dependents or beneficiaries) or (2) where the benefit is
required by Section 4980B of the Code.
(c) (i) Each Global Benefit Plan in effect on the date hereof has been
administered in all material respects in accordance with its terms and with all
applicable Laws, and Global and each of the Global Subsidiaries and all Global
Benefit Plans are in compliance in all material respects with the applicable
provisions of ERISA, the Code and other applicable Laws as to the Global
Benefit Plans; (ii) all material contributions, including participant
contributions and benefit payments, required under each Global Benefit Plan and
Global Benefit Agreement have been made in full on a timely and proper basis
pursuant to the terms of such plan or agreement and applicable Law; (iii) with
respect to the Global Benefit Plans and Global Benefit Agreements, individually
or in the aggregate, no event has occurred, and there exists no condition or
set of circumstances, including claims, audits, and investigations, in
connection with which Global or any of the Global Subsidiaries is reasonably
expected to become subject to material liability under any Global Benefit Plan
or Global Benefit Agreement or under ERISA, the Code or any other applicable
Law; (iv) no Participant has received or is reasonably expected to receive any
payment or benefit from Global or any Global Subsidiary that would be
nondeductible pursuant to Section 162(m) of the Code or any other applicable
Law except in connection with or in combination with accelerated vesting of
equity-based awards; (v) each Global Pension Plan that is intended to comply
with the provisions of Section 401(a) of the Code has been the subject of a
determination letter from the Internal Revenue Service with respect to all Tax
law changes with respect to which the Internal Revenue Service is currently
willing to provide a determination letter to the effect that such Global
Pension Plan currently is qualified and exempt from income Taxes under Section
401(a) of the Code and the trust relating to such plan is exempt from income
Taxes under Section 501(a) of the Code, and no such determination letter has
been revoked and, to the knowledge of Global, revocation has not been
threatened and, to the knowledge of Global, no event has occurred since the
date of the most recent determination letter or application therefor relating
to any such Global Pension Plan that is reasonably expected to adversely affect
the qualification of such Global Pension Plan or materially increase the costs
relating thereto or require security under Section 307 of ERISA; (vi) Global
has made available to Crown a copy of the most recent determination letter
received with respect to each Global Pension Plan for which such a letter has
been issued, as well as a copy of any pending application for a determination
letter and a complete and accurate list of all amendments to any Global Pension
Plan in effect as of the date hereof as to which a favorable determination
letter has not yet been received; (vii) there are no understandings, agreements
or
26
undertakings, written or oral, with any person (other than pursuant to the
express terms of the applicable Global Benefit Plan or Global Benefit
Agreement) that are (pursuant to any such understandings, agreements or
undertakings) reasonably expected to result in any liabilities if such Global
Benefit Plan or Global Benefit Agreement were amended or terminated on or at
any time after the Effective Time or that would prevent any unilateral action
by Global (or, after the Effective Time, Crown) to effect such amendment or
termination; (viii) other than as set forth in any Global Benefit Plans or as
may be required to avoid any adverse Tax consequence under Section 409A of the
Code, since December 31, 2005, there has not been any adoption, entry into,
termination or amendment in any material respect by Global or any Global
Subsidiaries of any Global Benefit Plan or Global Benefit Agreement or any
agreement (whether or not legally binding) to adopt, enter into, terminate or
amend any such plan or agreement; (ix) only officers, directors and employees
of Global or any Global Subsidiaries are eligible for compensation or benefits
under the terms of each Global Benefit Plan, and each individual who is
classified by Global or any Global Subsidiary as an "employee" or as an
"independent contractor" is properly so classified; and (x) no Global
Participant is entitled to any gross-up, make-whole or other additional payment
from Global or any Global Subsidiary in respect of any Tax (including Federal,
state, local or foreign income, excise or other Taxes (including Taxes imposed
under Section 409A of the Code)) or interest or penalty related thereto.
(d) With respect to each Global Benefit Plan, (i) there has not
occurred any "prohibited transaction" (as such term is defined in Section 406
of ERISA or Section 4975 of the Code) in which Global, any Global Subsidiary or
any of their respective officers, directors or employees or, to the knowledge
of Global, any trustee or other fiduciary or administrator of any Global
Benefit Plan or trust created thereunder, in each case, who is not an officer,
director or employee of Global or any Global Subsidiary (a "Non-Affiliate Plan
Fiduciary"), or any agent of the foregoing, has engaged that is reasonably
likely to subject Global, any Global Subsidiary or any of their respective
officers, directors or employees or any Non-Affiliate Plan Fiduciary, to the
Tax or penalty on prohibited transactions imposed by Section 4975 of the Code
or the sanctions imposed under Title I of ERISA or any other applicable Law and
(ii) none of Global, any Global Subsidiary or any of their respective officers,
directors or employees, or, to the knowledge of Global, any Non-Affiliate Plan
Fiduciary, nor any agent of any of the foregoing, has engaged in any
transaction or acted in a manner, or failed to act in a manner, that is
reasonably likely to subject Global, any Global Subsidiary or any of their
respective officers, directors or employees or any Non-Affiliate Plan Fiduciary
to any liability for breach of fiduciary duty under ERISA or any other
applicable Law.
(e) Each Global Benefit Plan and each Global Benefit Agreement that is
a "nonqualified deferred compensation plan" within the meaning of Section
409A(d)(1) of the Code (a "Nonqualified Deferred Compensation Plan") subject to
Section 409A of the Code has been operated in material compliance with Section
409A of the Code since January 1, 2005, based upon a good faith, reasonable
interpretation of (i) Section 409A of the Code and (ii)(A) the Proposed
Regulations issued thereunder or (B) Internal Revenue Service Notice 2005-1
(clauses (i) and (ii), together, the "409A Authorities"). No Global Benefit
Plan or Global Benefit Agreement that would be a Nonqualified Deferred
Compensation Plan subject to Section 409A of the Code but for the effective
date provisions that are applicable to Section 409A of the Code, as set forth
in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the
"AJCA"), has been "materially modified" within the meaning of Section
885(d)(2)(B) of the
27
AJCA after October 3, 2004, based upon a good faith reasonable interpretation
of the AJCA and the 409A Authorities.
(f) All outstanding Global Restricted Shares and Global Deferred
Shares are evidenced by restricted share award agreements, deferred share award
agreements or other award agreements, in each case as individually set forth
in, or in the forms set forth in, Section 3.14 of the Global Disclosure Letter,
and no restricted share award agreement, deferred share award agreement or
other award agreement not individually set forth therein contains terms that
are materially inconsistent with such forms.
Section 3.15 Labor and Employment Matters.
(a) Since January 1, 2004, neither Global nor any of the Global
Subsidiaries has been a party to, or bound by, or conducted negotiations
regarding, any collective bargaining agreement or other contracts,
arrangements, agreements or understandings with a labor union or labor
organization that was certified by the National Labor Relations Board ("NLRB")
or voluntarily recognized or recognized under foreign Law. There is no
existing, pending or, to the knowledge of Global, threatened (i) labor dispute,
walkout, lockout, strike, slowdown, hand billing, picketing work stoppage
(sympathetic or otherwise), work interruption or other "concerted action" (each
a "Concerted Action") involving the employees of Global or any of the Global
Subsidiaries, (ii) unfair labor practice charge or complaint, labor dispute,
labor arbitration proceeding or any other matter before the NLRB or any other
comparable state agency against or involving Global or any of the Global
Subsidiaries, (iii) election petition or other activity or proceeding by a
labor union or representative thereof to organize any employees of Global or
any of the Global Subsidiaries, (iv) certification or decertification question
relating to collective bargaining units at the premises of Global or any of the
Global Subsidiaries, or (v) grievance or arbitration demand against Global or
any Global Subsidiary whether or not filed pursuant to a collective bargaining
agreement that, in the case of any of the foregoing, has had or is reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect.
Neither the employees of Global nor the employees of any of the Global
Subsidiaries have engaged in a Concerted Action in the past three years that
has had or is reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
(b) None of Global, any of the Global Subsidiaries or any of their
respective representatives or employees has committed an unfair labor practice
in connection with the operation of the respective businesses of Global or any
of the Global Subsidiaries that has had or is reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. Each of Global and
the Global Subsidiaries is, and during the past five years has been, in
compliance with all applicable Laws respecting labor, employment, fair
employment practices, terms and conditions of employment, workers'
compensation, occupational safety, plant closings, mass layoffs, and wages and
hours, except where such failure to be in compliance has not had and is not
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. There are no controversies pending or, to the knowledge of
Global, threatened between Global or any of the Global Subsidiaries, on the one
hand, and any of their respective current or former employees, on the other
hand, that have resulted in, or are reasonably expected to result in, an
action, suit, proceeding, claim, arbitration or investigation before any
Governmental Entity
28
that has had or is reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 3.16 Environmental Compliance and Disclosure. Except as has
not had and is not reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect:
(a) (i) each of Global and the Global Subsidiaries possesses, and is
in compliance with, all permits, licenses and governmental authorizations and
has filed all registrations and notices that are required under, all
Environmental Laws applicable to Global or any Global Subsidiary, as
applicable, (ii) there are no proceedings pending, or, to Global's knowledge,
threatened to cancel, modify, or not renew any such permits, licenses or
governmental authorizations, and (iii) Global and each of the Global
Subsidiaries is in compliance with all applicable Environmental Laws;
(b) neither Global nor any Global Subsidiary has received written
notice of actual or threatened or potential liability under the Federal
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. ss. 9601 et seq.) ("CERCLA") or any similar applicable state or local
statute or ordinance from any governmental agency;
(c) to the knowledge of Global, no Hazardous Materials (as defined in
Section 3.16(j)) have ever been or are being Released, placed or otherwise
caused to become located in any environmental medium, including, without
limitation, soil, sub-surface strata, air, water or ground water, under, at, or
upon any plant, facility, site, area or property currently or previously owned
or leased by Global or any Global Subsidiary or on which Global or any Global
Subsidiary is conducting or has conducted its business or operations;
(d) neither Global nor any Global Subsidiary has entered into, nor
does either contemplate entering into, any agreement or Order, and neither
Global nor any Global Subsidiary is subject to any agreement or Order, in
either case, relating to compliance with, or the investigation, management or
cleanup of Hazardous Materials under, any applicable Environmental Laws;
(e) except for any matters that have been materially resolved, neither
Global nor any Global Subsidiary is or has been subject to any administrative
or judicial proceeding related to alleged or actual violations of or liability
under any applicable Environmental Laws;
(f) neither Global nor any Global Subsidiary has received notice that
it is subject to any claim, obligation, penalty, fine, liability, loss, damage
or expense of whatever kind or nature, contingent or otherwise, incurred or
imposed or based upon any provision of any applicable Environmental Law and
arising out of any act or omission of Global or any Global Subsidiary, its
employees, agents or representatives or, to the knowledge of Global, arising
out of the ownership, use, control or operation by Global or any Global
Subsidiary of any plant, facility, site, area or property (including any plant,
facility, site, area or property currently or previously owned or leased by
Global or any Global Subsidiary) or any other area on which Global or any
Global Subsidiary is conducting or has conducted its business or operations at
or from which any
29
Hazardous Materials were Released into the environment and there is no
reasonable basis for any such notice and, to the knowledge of Global, none are
threatened or foreseen; and
(g) to the knowledge of Global, none of the assets owned by Global or
any Global Subsidiary or any real property owned or leased by Global or any
Global Subsidiary contain any friable asbestos, Polychlorinated biphenyls or
underground storage tanks.
(h) As used in this Agreement, the term "environment" means any
surface or ground water, drinking water supply, soil, surface or subsurface
strata or medium, or the ambient air.
(i) As used in this Agreement, the term "Environmental Laws" means any
applicable and binding Laws (including statutes, and common law) of the United
States, any State or any political subdivision thereof, or any other nation or
political subdivision thereof, relating to pollution, management of Hazardous
Materials, protection of natural resources, protection of the environment or
protection of human health and safety from Hazardous Materials, including
judgments, awards, decrees, regulations, rules, standards, requirements, orders
and permits issued by any court, administrative agency or commission or other
Governmental Entity under such Laws, and shall include without limitation
CERCLA, the Clean Air Act (42 U.S.C. xx.xx. 7401 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. xx.xx. 6901 et seq.), the Clean Water
Act (33 U.S.C. xx.xx. 1251 et seq.), the Occupational Safety and Health Act (29
U.S.C. xx.xx. 651 et seq.) (to the extent it regulates Hazardous Materials),
the Toxic Substances Control Act (15 U.S.C. xx.xx. 2601 et seq.), Emergency
Planning and Community Right To Know Act (42 U.S.C. 11001 et seq.), and the
Safe Drinking Water Act (42 U.S.C. xx.xx. 300f et seq.), as well as any and all
regulations, rules, standards, requirements, orders and permits issued
thereunder.
(j) As used in this Agreement, the term "Hazardous Material" means any
waste, pollutant, hazardous substance, toxic, radioactive, ignitable, reactive
or corrosive substance, hazardous waste, special waste, controlled waste,
industrial substance, by-product, process intermediate product or waste,
petroleum or petroleum-derived substance or waste, chemical liquids or solids,
liquid or gaseous products, or any constituent of any such substance, waste or
material which is regulated by Environmental Laws, the presence of which in the
environment is regulated or creates liability, or which may be harmful to human
health or the environment.
(k) As used in this Agreement, the term "Release" means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the environment.
Section 3.17 Intellectual Property.
(a) Except as, individually or in the aggregate, has not had and is
not reasonably expected to have a Material Adverse Effect: Global does not have
knowledge of any valid grounds for any bona fide claims (A) to the effect that
the manufacture, sale, licensing or use of any product as now used, sold or
licensed or proposed for use, sale or license by Global or any of the Global
Subsidiaries, infringes on any copyright, patent, trademark, trade name,
service
30
xxxx or trade secret of any third party, (B) challenging the ownership
or validity of any of the Global Intellectual Property Rights material to
Global and the Global Subsidiaries, taken as a whole, or (C) challenging the
license or legally enforceable right to use of the Third-Party Intellectual
Property Rights licensed to Global or any of the Global Subsidiaries. Except
as, individually or in the aggregate, has not had and is not reasonably
expected to have a Material Adverse Effect, Global and each of the Global
Subsidiaries owns, or is licensed to use (in each case free and clear of any
Liens), all Intellectual Property used in or necessary for the conduct of its
business as currently conducted.
(b) As used in this Agreement, the term (i) "Intellectual Property"
means all patents, trademarks, trade names, service marks, copyrights and any
applications therefor, technology, know-how, computer software programs or
applications, and other proprietary information or materials, trademarks, trade
names, service marks and copyrights, (ii) "Third-Party Intellectual Property
Rights" means any rights to Intellectual Property owned by any third party, and
(iii) "Global Intellectual Property Rights" means the Intellectual Property
owned by Global or any of the Global Subsidiaries.
Section 3.18 Stockholders' Rights Agreement. Neither Global nor any
Global Subsidiary has adopted, or intends to adopt, a stockholders' rights
agreement or any similar plan or agreement which limits or impairs the ability
to purchase, or become the direct or indirect beneficial owner of, Shares or
any other equity or debt securities of Global or any of the Global
Subsidiaries.
Section 3.19 Brokers; Schedule of Fees and Expenses. No broker,
investment banker, financial advisor or other person, other than the Global
Financial Advisor, the fees and expenses of which will be paid by Global, is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the Merger and the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
Global. The estimated aggregate fees and expenses incurred and to be incurred
by Global in connection with the Merger and the other transactions contemplated
by this Agreement (including the fees of the Global Financial Advisor and the
fees of Global's legal counsel) are set forth in the Global Disclosure Letter.
Global has furnished to Crown a true and complete copy of all agreements
between Global and the Global Financial Advisor relating to the Merger and the
other transactions contemplated by this Agreement.
Section 3.20 Insurance. Global has delivered to Crown prior to the
date hereof a list that is true and complete in all material respects of all
material insurance policies in force naming Global, any of the Global
Subsidiaries or employees thereof as an insured or beneficiary or as a loss
payable payee or for which Global or any Global Subsidiary has paid or is
obligated to pay all or part of the premiums. Except as has not had, or is not
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect, all such insurance policies are in full force and effect, all
premiums due and payable thereon have been paid, and neither Global nor any
Global Subsidiary has received, as of the date hereof, written notice of any
pending or threatened cancellation or premium increase (retroactive or
otherwise) with respect thereto. Each of Global and the Global Subsidiaries is
in compliance with all conditions contained in such insurance policies, except
where the failure to so comply has not had, or is not reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect.
31
Section 3.21 Foreign Corrupt Practices Act and International Trade
Sanctions. Neither Global, nor any Global Subsidiaries, nor any of their
respective directors, officers, agents, employees or any other persons acting
on their behalf has, in connection with the operation of their respective
businesses, (i) used any corporate or other funds for unlawful contributions,
payments, gifts or entertainment, or made any unlawful expenditures relating to
political activity, to government officials, candidates or members of political
parties or organizations, or established or maintained any unlawful or
unrecorded funds in violation of Section 104 of the Foreign Corrupt Practices
Act of 1977, as amended, or any other similar applicable foreign, Federal or
state Law, (ii) paid, accepted or received or any unlawful contributions,
payments, expenditures or gifts, or (iii) violated or operated in noncompliance
with any export restrictions, anti-boycott regulations, embargo regulations or
other applicable domestic or foreign Laws, except, in the case of clauses (i),
(ii) and (iii), as has not had and is not reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section 3.22 Ownership of Crown Common StockSection 3.23 . As of the
date of this Agreement, none of Global or any Global Subsidiaries beneficially
own (within the meaning of Section 13 of the Exchange Act and the rules and
regulations promulgated thereunder and within the meaning set forth in Section
203 of the DGCL) any shares of Crown Common Stock or are a party to any
contract, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of Crown Common Stock.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF CROWN AND MERGER SUB
Each of Crown and Merger Sub represents and warrants to Global as
follows (except (i) as set forth in the written disclosure letter (which letter
shall in each case specifically identify by reference to Sections of this
Agreement any exceptions to each of the representations, warranties and
covenants contained in this Agreement; provided, however, that any information
set forth in one section or subsection of such disclosure letter shall be
deemed to apply to each other section or subsection thereof or hereof to which
its relevance is readily apparent on its face) delivered by Crown to Global in
connection with the execution and delivery of this Agreement (the "Crown
Disclosure Letter") or (ii) as readily apparent from disclosure in the Crown
SEC Reports (as defined in Section 4.7(a)) filed or furnished to the SEC by
Crown, and in either case, publicly available on or prior to the date hereof,
but excluding, in each case, any disclosures set forth in any risk factor
section, in any section relating to forward-looking statements and any other
disclosures included therein to the extent that they are cautionary, predictive
or forward-looking in nature):
Section 4.1 Organization and Standing.
(a) Each of Crown and Merger Sub is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
formation. Crown has made available to Global complete and correct copies of
the minutes (or, in the case of minutes that have not yet been finalized,
drafts thereof) of all meetings of the stockholders of Crown and each of the
Crown Subsidiaries (as defined in Section 4.2(d)), the boards of directors of
Crown
32
and each of the Crown Subsidiaries, and the committees of each such board
of directors, in each case held since January 1, 2004 and prior to the date
hereof.
(b) (i) Each Crown Subsidiary is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or
organization and (ii) each of Crown, Merger Sub and each Crown Subsidiary (A)
has full corporate (or similar) power and authority and all necessary
government approvals to own, lease and operate its properties and assets and to
conduct its business as presently conducted, and (B) is duly qualified or
licensed to do business as a foreign corporation, limited partnership,
partnership or limited liability company and is in good standing in each
jurisdiction where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing
necessary, except in the case of clauses (b)(i) and (b)(ii), where any such
failure has not had, or is not reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect. Crown has furnished or made available
to Global true and complete copies of the Restated Certificate of Incorporation
of Crown, as amended through the date of this Agreement (as so amended, the
"Crown Certificate of Incorporation"); the Amended and Restated Bylaws of
Crown, as amended through the date of this Agreement (as so amended, the "Crown
Bylaws"); and the comparable charter and organizational documents of each Crown
Subsidiary, in each case as amended through the date of this Agreement. The
Crown Certificate of Incorporation and the Crown Bylaws are in full force and
effect and have not been amended or otherwise modified. Crown is not in
material violation of any provision of the Crown Certificate of Incorporation
or the Crown Bylaws, and no Crown Subsidiary is in material violation of any
provision of its certificate of incorporation, bylaws or equivalent
organizational documents.
(c) Merger Sub was formed solely for the purpose of engaging in the
transactions contemplated by this Agreement. Merger Sub has not engaged in any
business activities, conducted any operations or incurred any liabilities,
other than liabilities and obligations incurred in connection with the
transactions contemplated by this Agreement.
Section 4.2 Capitalization.
(a) The authorized capital stock of Crown consists of (i) 600,000,000
shares of Crown Common Stock, (ii) 90,000,000 shares of Crown Class A Common
Stock, par value $0.01 per share ("Crown Class A Common Stock"), and (iii)
20,000,000 shares of preferred stock, par value $0.01 per share. At the close
of business on September 29, 2006, (i) 201,890,480 shares of Crown Common Stock
were issued and outstanding (including 1,234,993 shares of Crown Common Stock
that were outstanding as of the relevant time but were subject to vesting or
other forfeiture restrictions or a right of repurchase by Crown as of such time
(shares so subject, "Crown Restricted Shares")), (ii) no shares of Crown Common
Stock were held by Crown in its treasury, and (iii) an aggregate of 16,941,660
shares of Crown Common Stock were reserved for issuance pursuant to Crown's
1995 Stock Option Plan, 2001 Stock Incentive Plan and 2004 Stock Incentive
Plan, each as amended (collectively, the "Crown Stock Plans"), of which
6,230,366 shares of Crown Common Stock were subject to outstanding and
unexercised options entitling the holder thereof to purchase a share of Crown
Common Stock (each, a "Crown Option"). At the close of business on September
29, 2006, (i) no shares of Crown Class A Common Stock were issued and
outstanding or were held by Crown in its treasury, (ii) 8,050,000 shares of
6.25% Cumulative Convertible Preferred Stock were designated and
33
authorized, 6,361,000 of which shares were issued and outstanding (for which
8,625,000 shares of Crown Common Stock were reserved for issuance and issuable
upon conversion thereof), (iii) 1,000,000 shares of Series A Participating
Cumulative Preferred Stock, par value $.01 per share, were designated and
authorized, all of which were reserved for issuance pursuant to the Rights
Agreement (as defined in Section 4.14(a)), (iv) 5,900,767 shares of Crown
Common Stock were reserved for issuance and issuable upon conversion of the 4%
Convertible Senior Notes due 2010 of Crown and (v) warrants to acquire 589,990
shares of Crown Common Stock from Crown pursuant to the warrant agreements
listed on Section 4.2(a) of the Crown Disclosure Letter (the "Crown Warrants")
were issued and outstanding.
(b) Except (i) as set forth in Section 4.2(a) above or (ii) as
necessary to give effect to the Merger, the Share Issuance and the other
transactions contemplated by this Agreement, at the close of business on
September 29, 2006, no shares of capital stock or other voting securities of
Crown were issued, reserved for issuance or outstanding. From September 29,
2006, until the date of this Agreement, there have been no issuances by Crown
of shares of capital stock of, or other equity or voting interests in, Crown,
other than the issuance of shares of Crown Common Stock pursuant to the
exercise of Crown Options and Crown Warrants outstanding as of September 29,
2006, each in accordance with their terms as in effect on September 29, 2006.
Except (i) as set forth above or (ii) as necessary to give effect to the
Merger, the Share Issuance and the other transactions contemplated by this
Agreement, as of the date hereof, there are no options, warrants, convertible
or exchangeable securities, subscriptions, stock appreciation rights, phantom
stock rights or stock equivalents or other rights, agreements, arrangements or
commitments (contingent or otherwise) of any character issued or authorized by
Crown or any Crown Subsidiary (i) relating to any issued or unissued capital
stock or equity interest of Crown or any Crown Subsidiary, (ii) obligating
Crown or any Crown Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, any shares of capital stock of, or options, warrants,
convertible or exchangeable securities, subscriptions or other equity interests
in Crown or any Crown Subsidiary or (iii) that give any person the right to
receive any economic benefit or right similar to or derived from the economic
benefits and rights accruing to holders of capital stock of Crown or any Crown
Subsidiary (each of (i), (ii) and (iii), collectively, the "Crown Stock
Rights"). All outstanding shares of Crown Common Stock are, and all shares of
Crown Common Stock that may be issued prior to the Effective Time will be when
issued, duly authorized, validly issued, fully paid and nonassessable. There
are no outstanding contractual obligations of Crown or any Crown Subsidiary to
repurchase, redeem or otherwise acquire any capital stock or equity interest of
Crown (including any shares of Crown Common Stock) or any Crown Subsidiary or
any Crown Stock Rights or to pay any dividend or make any other distribution in
respect thereof or to provide funds to, or make any investment (in the form of
a loan, capital contribution or otherwise) in, any person, other than pursuant
to the Crown Stock Plans.
(c) As of the close of business on October 2, 2006, 100% of the
limited liability company interests of Merger Sub are owned directly by Crown
free and clear of all Liens and are duly authorized and validly issued and free
of preemptive rights. There are no options, warrants, convertible securities,
subscriptions, stock appreciation rights, phantom stock plans or stock
equivalents or other rights, agreements, arrangements or commitments
(contingent or otherwise) of any character issued or authorized by Merger Sub
relating to the issued or unissued equity interests of Merger Sub or obligating
Merger Sub to issue or sell any equity
34
interests of, or options, warrants, convertible securities, subscriptions or
other equity interests in, Merger Sub.
(d) Section 4.2(d) of the Crown Disclosure Letter lists all the
Subsidiaries of Crown (each a "Crown Subsidiary" and together, the "Crown
Subsidiaries") in existence as of the date hereof. All the outstanding shares
of capital stock of, or other equity interests in, each such Crown Subsidiary
have been duly authorized and validly issued and are fully paid and
nonassessable and are owned directly or indirectly by Crown, free and clear of
all Liens and free of any other restriction (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock or other
ownership interests), except for restrictions imposed by applicable securities
laws. Neither Crown nor any of the Crown Subsidiaries directly or indirectly
owns or has any right or obligation to subscribe for or otherwise acquire any
equity or similar interest in, or any interest convertible into or exchangeable
or exercisable for, any corporation, partnership, joint venture or other
business association or entity (other than the Crown Subsidiaries).
Section 4.3 Authority for Agreement.
(a) Each of Crown and Merger Sub has all necessary corporate or
limited liability company power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and, subject to obtaining the
Crown Stockholder Approval (as defined below) in connection with the Merger, to
consummate the Merger and the other transactions contemplated by this
Agreement. The execution, delivery and performance by each of Crown and Merger
Sub of this Agreement, and the consummation by each of Crown and Merger Sub of
the Merger and the other transactions contemplated by this Agreement, have been
duly authorized by all necessary corporate or limited liability company action
on the part of Crown and Merger Sub, as applicable, and no other corporate or
limited liability company proceedings on the part of Crown or Merger Sub, as
applicable, are necessary to authorize this Agreement or to consummate the
Merger or the other transactions contemplated by this Agreement (other than
obtaining the Crown Stockholder Approval and the filing and recordation of
appropriate merger documents as required by the DGCL and the DLLC Act). This
Agreement has been duly executed and delivered by each of Crown and Merger Sub
and, assuming the due authorization, execution and delivery by Global,
constitutes a legal, valid and binding obligation of each of Crown and Merger
Sub enforceable against each of Crown and Merger Sub in accordance with its
terms subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally and to the effect of general principles of equity. The
affirmative vote of a majority of the total votes cast by the holders of Crown
Common Stock at the Crown Stockholders Meeting, provided that the total votes
cast represents over 50% in interest of all securities entitled to vote, as
required by the Listed Company Manual of the NYSE, is the only vote of the
holders of any capital stock of Crown necessary to approve the Share Issuance
(the "Crown Stockholder Approval"). The written consent of Crown, in its
capacity as the sole member of Merger Sub, is the only vote, consent or
approval of the holders of Merger Sub Units necessary to adopt and approve this
Agreement, the Merger and the other transactions contemplated by this
Agreement.
(b) The Crown Board, at a meeting duly called and held duly and
unanimously (with one abstention) adopted resolutions (i) approving this
Agreement and the other Transaction Agreements, the Merger, the Share Issuance
and the other transactions contemplated by this Agreement, (ii) determining
that the terms of the Merger, the Share Issuance and the other transactions
35
contemplated by this Agreement are fair to and in the best interests of Crown
and its stockholders and (iii) recommending that Crown's stockholders approve
the Share Issuance. Such resolutions are sufficient to render inapplicable to
this Agreement and the other Transaction Agreements, the Merger, the Share
Issuance and the other transactions contemplated by this Agreement (including
the acquisition pursuant hereto of shares of Crown Common Stock by the Global
stockholders that are party to the Stockholders Agreement and their respective
Affiliates) the restrictions on "business combinations" (as defined in Section
203 of the DGCL) set forth in Section 203 of the DGCL. To Crown's knowledge, no
other state takeover statute or similar statute or regulation applies or
purports to apply to Crown with respect to this Agreement and other Transaction
Agreements, the Merger, the Share Issuance or any other transaction
contemplated by this Agreement.
(c) Crown, in its capacity as the sole member of Merger Sub, has
approved and adopted this Agreement and the Merger.
(d) Each of X.X. Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (each a "Crown Financial Advisor") has delivered to the Crown
Board its opinion to the effect that, as of the date of such opinion and based
on the assumption, qualifications and limitations contained therein, the Merger
Consideration is fair, from a financial point of view, to Crown. Crown has made
available to Global, for informational purposes only, correct and complete
copies of the forms of such opinions prior to the execution of this Agreement.
Section 4.4 No Conflict. The execution and delivery of this Agreement
by each of Crown and Merger Sub do not, and the performance of this Agreement
by each of Crown and Merger Sub and the consummation of the Merger and the
other transactions contemplated by this Agreement will not, (a) assuming the
Crown Stockholder Approval is obtained, conflict with or violate (i) the Crown
Certificate of Incorporation or the Crown Bylaws, (ii) the Certificate of
Formation of Merger Sub or the Operating Agreement of Merger Sub or (iii) the
equivalent organizational documents of any of the Crown Subsidiaries, (b)
subject to Section 4.5 and assuming the Crown Stockholder Approval is obtained,
conflict with or violate any Law or any Order, in each case applicable to Crown
or any of the Crown Subsidiaries or by which any property or asset of Crown or
any of the Crown Subsidiaries is bound or affected, or (c) result in a breach
of or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, give to others any right of termination,
amendment, acceleration or cancellation of, result in the triggering of any
payment or other obligation or any right of consent, or result in the creation
of a Lien on any property or asset of Crown or any of the Crown Subsidiaries
pursuant to any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Crown or
any of the Crown Subsidiaries is a party or by which Crown or any of the Crown
Subsidiaries or any property or asset of any of them is bound or affected
except, in the case of clauses (a)(iii), (b) and (c) above, for any such
conflicts, violations, breaches, defaults or other occurrences which have not
had and are not reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect.
Section 4.5 Required Filings and Consents. The execution and delivery
of this Agreement by Crown and Merger Sub do not, and the performance of this
Agreement by Crown and Merger Sub will not, require any consent, approval,
order, authorization or permit of, or
36
declaration, registration, filing with, or notification to, any Governmental
Entity, except for (i) applicable requirements, if any, of (A) the Securities
Act and the Exchange Act, including, without limitation, the filing with the
SEC of the Joint Proxy Statement and of the Registration Statement in which the
Joint Proxy Statement will be included as a prospectus, and declaration of
effectiveness of the Registration Statement, (B) state securities or "blue sky"
laws, (C) the DGCL and the DLLC Act to file the Certificate of Merger or other
appropriate documentation and (D) the NYSE, (ii) those required by the HSR Act,
(iii) such filings and approvals as are required to be made or obtained under
any foreign antitrust, competition or similar Laws in connection with the
consummation of the Merger and the other transactions contemplated by this
Agreement, (iv) the filing of customary applications and notices, as
applicable, (A) with the FAA, and any approvals of such applications and
notices, or (B) with the FCC under the Communications Act, and any approvals of
such applications and notices, which, in the case of this clause (iv), are
required or appropriate with respect to the transactions contemplated by this
Agreement and related to Crown's ownership or operation of communications or
broadcast towers and the assets and properties relating thereto and (v)
customary filings, notices and approvals with any state public service, public
utility commissions, state environmental agencies or similar state regulatory
bodies with respect to the transactions contemplated by this Agreement and
related to the consummation of the Merger and the other transactions
contemplated by this Agreement as a result of Crown's ownership or operation of
communications or broadcast towers and the assets and properties relating
thereto.
Section 4.6 Compliance; Regulatory Compliance.
(a) Each of Crown and the Crown Subsidiaries (i) has been operated at
all times in compliance with all Laws applicable to Crown or any of the Crown
Subsidiaries or by which any property, business or asset of Crown or any of the
Crown Subsidiaries is bound or affected and (ii) is not in default or violation
of any governmental licenses, permits or franchises to which Crown or any of
the Crown Subsidiaries is a party or by which Crown or any of the Crown
Subsidiaries or any property or asset of Crown or any of the Crown Subsidiaries
is bound or affected other than, in the case of clauses (i) and (ii) above,
failures to comply, defaults or violations which do not have and are not
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. Neither Crown nor any Crown Subsidiary has received any written
communication during the past two years from a Governmental Entity that alleges
that Crown or a Crown Subsidiary is not in compliance with any applicable Law,
except for failures to be in compliance that, individually or in the aggregate,
have not had and are not reasonably expected to have a Material Adverse Effect.
(b) Each of Crown and the Crown Subsidiaries has in effect all
required governmental licenses, permits, certificates, approvals and
authorizations necessary for the conduct of their business and the use of their
properties and assets, as presently conducted and used, except where such
failure has not had, or is not reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect; and neither Crown nor any Crown
Subsidiary has received notice from any Governmental Entity that any such
license, permit, certificate, approval or authorization is subject to any
adverse action which has had, or is reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect.
37
(c) This Section 4.6 does not relate to Tax matters, environmental
matters or matters related to the Foreign Corrupt Practices Act and
international trade sanctions, which are the subjects of Sections 4.9, 4.13 and
4.16, respectively.
Section 4.7 SEC Filings; Financial Statements.
(a) Each of Crown and the Crown Subsidiaries has filed all forms,
reports, statements and documents required to be filed with the SEC since
January 1, 2004 (the "Crown SEC Reports"), each of which has complied in all
material respects with the applicable requirements of the Securities Act and
the rules and regulations promulgated thereunder, the Exchange Act and the
rules and regulations promulgated thereunder, and the Xxxxxxxx-Xxxxx Act and
the rules and regulations promulgated thereunder, each as in effect on the date
so filed, except to the extent updated, amended, restated or corrected by a
subsequent Crown SEC Report filed or furnished to the SEC by Crown, and in
either case, publicly available prior to the date hereof (each, a "Crown Filed
SEC Report"). None of the Crown SEC Reports (including any financial statements
or schedules included or incorporated by reference therein) contained when
filed or currently contains, and any Crown SEC Reports filed with the SEC
subsequent to the date hereof will not contain, any untrue statement of a
material fact or omission to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except to the extent
updated, amended, restated or corrected by a subsequent Crown Filed SEC Report.
(b) Except to the extent updated, amended, restated or corrected by a
subsequent Crown Filed SEC Report, all of the financial statements included in
the Crown SEC Reports, in each case, including any related notes thereto, as
filed with the SEC (those filed with the SEC are collectively referred to as
the "Crown Financial Statements"), comply as to form in all material respects
with applicable accounting requirements and the published rules of the SEC with
respect thereto and have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of the unaudited statements, as may be
permitted by Form 10-Q of the SEC and subject, in the case of the unaudited
statements, to normal, year-end audit adjustments which are not reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect).
The consolidated balance sheets (including the related notes) included in such
Crown Financial Statements (if applicable, as updated, amended, restated or
corrected in a subsequent Crown Filed SEC Report) fairly present, in all
material respects, the consolidated financial position of Crown and the Crown
Subsidiaries at the respective dates thereof, and the consolidated statements
of operations, stockholders' equity and cash flows (in each case, including the
related notes) included in such Crown Financial Statements (if applicable, as
updated, amended, restated or corrected in a subsequent Crown Filed SEC Report)
fairly present, in all material respects, the consolidated statements of
operations, stockholders' equity and cash flows of Crown and the Crown
Subsidiaries for the periods indicated, subject, in the case of the unaudited
statements, to normal, year-end adjustments which are not reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect.
(c) Neither Crown nor any of the Crown Subsidiaries has any
liabilities or obligations of any kind whatsoever, whether or not accrued and
whether or not contingent or absolute, that are material to Crown and the Crown
Subsidiaries, taken as a whole, other than (i)
38
liabilities or obligations disclosed or provided for in the unaudited
consolidated balance sheet of Crown as of June 30, 2006, including the notes
thereto, contained in the Crown SEC Reports, (ii) liabilities or obligations
incurred on behalf of Crown in connection with this Agreement and the
contemplated Merger, (iii) liabilities or obligations incurred in the ordinary
course of business consistent with past practice since June 30, 2006, and (iv)
other liabilities or obligations that are otherwise covered by insurance.
(d) Each of the principal executive officer of Crown and the principal
financial officer of Crown (or each former principal executive officer of Crown
and each former principal financial officer of Crown, as applicable) has made
all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to the Crown SEC
Reports, and the statements contained in such certifications are true and
accurate. Neither Crown nor any of the Crown Subsidiaries has any outstanding,
or has arranged any outstanding, "extensions of credit" to directors or
executive officers within the meaning of Section 402 of the Xxxxxxxx-Xxxxx Act.
(i) Crown maintains a system of "internal control over
financial reporting" (as defined in Rules 13a-15(f) and 15d-15(f)
under the Exchange Act) sufficient to provide reasonable assurance (A)
that transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP, consistently applied,
(B) that transactions are executed only in accordance with the
authorization of management and (C) regarding prevention or timely
detection of the unauthorized acquisition, use or disposition of
Crown's assets.
(ii) Crown's "disclosure controls and procedures" (as defined
in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) are
reasonably designed to ensure that all information (both financial and
non-financial) required to be disclosed by Crown in the reports that
it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the rules
and forms of the SEC, and that all such information is accumulated and
communicated to Crown's management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications
of the chief executive officer and chief financial officer of Crown
required under the Exchange Act with respect to such reports.
(iii) Neither Crown nor any of the Crown Subsidiaries is a
party to, or has any commitment to become a party to, any joint
venture, off-balance sheet partnership or any similar contract
(including any contract or arrangement relating to any transaction or
relationship between or among Crown or any of the Crown Subsidiaries,
on the one hand, and any unconsolidated affiliate, including any
structured finance, special purpose or limited purpose entity or
person, on the other hand, or any "off-balance sheet arrangements" (as
defined in Item 303(a) of Regulation S-K of the SEC), where the
result, purpose or intended effect of such contract is to avoid
disclosure of any material transaction involving, or material
liabilities of, Crown or any of the Crown Subsidiaries in Crown's or
such Crown Subsidiary's published financial statements or other Crown
SEC Reports.
39
(iv) Since January 1, 2004, Crown has not received any oral
or written notification of any (x) "significant deficiency" or (y)
"material weakness" in Crown's internal controls over financial
reporting. There is no outstanding "significant deficiency" or
"material weakness" which Crown's independent accountants certify has
not been appropriately and adequately remedied by Crown.
(e) The effectiveness of any additional SEC disclosure requirement
that, as of the date of this Agreement, has been formally proposed that is not
yet in effect, is not expected by Crown to lead to any materially adverse
change in Crown's disclosures as set forth in the Crown SEC Reports.
(f) None of the Crown Subsidiaries is, or has at any time since
January 1, 2004 been, subject to the reporting requirements of Sections 13(a)
and 15(d) of the Exchange Act.
Section 4.8 Absence of Certain Changes or Events. Except as
contemplated by this Agreement, since the date of the most recent audited
financial statements included in the Crown SEC Reports and through the date
hereof, each of Crown and the Crown Subsidiaries has conducted its respective
businesses only in the ordinary course in all material respects and in a manner
consistent with prior practice in all material respects and there has not been
any event or occurrence of any condition that has had or is reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect. Except as
contemplated by this Agreement, since the date of the most recent audited
financial statements included in the Crown SEC Reports and through the date
hereof, there has not been (i) any material change in accounting methods,
principles or practices employed by Crown or (ii) any action of the types
described in Section 5.2(b) or Section 5.2(c) which, had such action been taken
after the date of this Agreement, would be in violation of any such Section.
Section 4.9 Taxes.
(a) Each of Crown and the Crown Subsidiaries has duly filed all Tax
Returns required to be filed by it or has been granted extensions to file such
Tax Returns, which extensions have not expired, and all such Tax Returns are
true, complete and accurate, except to the extent that all such failures to
file, taken together, have not had and are not reasonably expected to have a
Material Adverse Effect. Crown and each of the Crown Subsidiaries have paid (or
Crown has paid on its behalf) all Taxes (i) shown as due on such Tax Returns or
(ii) otherwise due and payable, except for those Taxes (x) being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in the financial statements included in the Crown SEC Reports in
accordance with GAAP or (y) that have not had and are not reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect. There are
no Liens for any Taxes upon the assets of Crown or the Crown Subsidiaries,
other than (i) statutory Liens for Taxes not yet due and payable, (ii) Liens
for Taxes contested in good faith by appropriate proceedings and (iii) Liens
that are not, and are not reasonably expected to be, material to the businesses
of Crown and the Crown Subsidiaries, taken as a whole.
(b) Crown had at least $1,437,000,000 of "net operating loss
carryovers" within the meaning of Section 172 of the Code as of December 31,
2005, which are not subject to any limitations pursuant to Section 382 of the
Code as of the date hereof but which may
40
become subject to such limitations in connection with the Merger. Crown
anticipates that for each taxable year following the Merger, any "Section 382
limitation" (as defined in Section 382(b) of the Code) that may be imposed upon
Crown's use of such net operating loss carryovers will equal or exceed Crown's
anticipated taxable income (calculated without regard to any deductions
attributable to such net operating loss carryovers that are available to Crown
under the Code).
(c) No Tax Return of Crown or a Crown Subsidiary is or has ever been
audited or examined by any tax authority, and no notice of such an audit or
examination has been received by Crown or a Crown Subsidiary. No deficiencies
for any Taxes have been proposed, asserted or assessed in writing against Crown
or any of the Crown Subsidiaries that are not adequately reserved for, except
for deficiencies that, individually or in the aggregate, have not had and are
not reasonably expected to have a Material Adverse Effect, and no requests for
waivers of the time to assess any such taxes have been granted or are pending
(other than with respect to years that are currently under examination by the
Internal Revenue Service or other applicable taxing authorities).
(d) Neither Crown nor any of the Crown Subsidiaries has taken any
action or has any knowledge of any fact or circumstance that is reasonably
likely to prevent the transactions contemplated hereby, including the Merger,
from qualifying as a reorganization within the meaning of Section 368 of the
Code.
(e) Neither Crown nor any of the Crown Subsidiaries has constituted
either a "distributing corporation" or a "controlled corporation" (within the
meaning of Section 355(a)(1)(A)) in a distribution of stock qualifying for
tax-free treatment under Section 355 of the Code (i) in the two years prior to
the date of this Agreement or (ii) in a distribution which could otherwise
constitute part of a "plan" or "series of related transactions" (within the
meaning of Section 355(e) of the Code) in conjunction with the Merger.
(f) Neither Crown nor any of the Crown Subsidiaries has entered into a
"listed transaction" within the meaning of Treasury Regulation
ss.1.6011-4(b)(2).
(g) Crown and the Crown Subsidiaries have complied with all applicable
Laws relating to the payment and withholding of Taxes, except where a failure
to comply, individually or in the aggregate, has not had and is not reasonably
expected to have a Material Adverse Effect.
(h) Neither Crown nor any of the Crown Subsidiaries has any liability
for the Taxes of any person (other than Crown and the Crown Subsidiaries) under
Treasury Regulation ss. 1.1502-6 (or any similar provision of any state, local
or foreign law) as a transferee or successor, by contract or otherwise that,
individually or in the aggregate, has had or is reasonably expected to have a
Material Adverse Effect.
Section 4.10 Change of Control Agreement; No Excess Parachute
Payment(a) . Neither the execution and delivery of this Agreement, the
consummation of the Merger or the other transactions contemplated by this
Agreement nor compliance with the terms hereof will (either alone or in
conjunction with any other event) (i) entitle any current or former employee,
41
officer, director or consultant of Crown or any Crown Subsidiary (each, a
"Crown Participant") to enhanced severance or termination pay, change in
control or similar payments or benefits, (ii) result in, cause the accelerated
vesting or delivery of, or increase the amount or value of, any payment or
benefit to any Crown Participant, (iii) trigger any payment or funding (through
a grantor trust or otherwise) of any compensation or benefits under, increase
the amount payable or trigger any other material obligation pursuant to, or
increase the cost of, any benefit plan, program or arrangement of Crown or (iv)
result in any breach or violation of, or a default under, any benefit plan,
program or arrangement of Crown. No Crown Participant is entitled to receive
any additional payment (e.g., any Tax gross up or other payment) from Global,
Crown or any other person in the event that the excise Tax required by Section
4999(a) of the Code is imposed on such disqualified individual.
Section 4.11 Litigation.
(a) There is no Litigation pending or, to the knowledge of Crown,
threatened against or affecting Crown or any of the Crown Subsidiaries or any
of their respective assets which, if adversely determined, individually or in
the aggregate, has had or is reasonably expected to have a Material Adverse
Effect.
(b) There is not any Order of any Governmental Entity or arbitrator
outstanding against, or, to the knowledge of Crown, investigation by, any
Governmental Entity involving Crown or any of the Crown Subsidiaries or any of
their respective assets that, individually or in the aggregate, has had or is
reasonably expected to have a Material Adverse Effect.
(c) This Section 4.11 does not relate to Tax matters or environmental
matters, which are the subjects of Sections 4.9 and 4.13, respectively.
Section 4.12 Information Supplied. None of the information supplied or
to be supplied by Crown or Merger Sub specifically for inclusion or
incorporation by reference in (i) the Registration Statement will, at the time
the Registration Statement is filed with the SEC, at any time it is amended or
supplemented or at the time it becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) the Joint Proxy Statement will, at the date it is first
mailed to Global's stockholders or Crown's stockholders or at the time of the
Global Stockholders Meeting or the Crown Stockholders Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The Joint
Proxy Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder,
except that no representation is made by Crown or Merger Sub with respect to
statements made or incorporated by reference therein based on information
supplied by Global specifically for inclusion or incorporation by reference in
the Joint Proxy Statement.
42
Section 4.13 Environmental Compliance and Disclosure. Except as has
not had and is not reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect:
(a) (i) each of Crown and the Crown Subsidiaries possesses, and is in
compliance with, all permits, licenses and governmental authorizations and has
filed all registrations and notices that are required under, all Environmental
Laws applicable to Crown or any Crown Subsidiary, as applicable, (ii) there are
no proceedings pending, or, to Crown's knowledge, threatened to cancel, modify
or not renew any such permits, licenses or governmental authorizations, and
(iii) Crown and each of the Crown Subsidiaries is in compliance with all
applicable limitations;
(b) neither Crown nor any Crown Subsidiary has received written notice
of actual or threatened or potential liability under CERCLA or any similar
applicable state or local statute or ordinance from any governmental agency;
(c) to the knowledge of Crown, no Hazardous Materials have ever been
or are being Released, placed or otherwise caused to become located in any
environmental medium, including, without limitation, soil, sub-surface strata,
air, water or ground water, under, at or upon any plant, facility, site, area
or property currently or previously owned or leased by Crown or any Crown
Subsidiary or on which Crown or any Crown Subsidiary is conducting or has
conducted its business or operations;
(d) neither Crown nor any Crown Subsidiary has entered into, nor does
either contemplate entering into, any agreement or Order, and neither Crown nor
any Crown Subsidiary is subject to any agreement or Order, in either case,
relating to compliance with, or the investigation, management or cleanup of
Hazardous Materials under, any applicable Environmental Laws;
(e) except for matters that have been materially resolved, neither
Crown nor any Crown Subsidiary is or has been subject to any administrative or
judicial proceeding related to alleged or actual violations of or liability
under any applicable Environmental Laws;
(f) neither Crown nor any Crown Subsidiary has received notice that it
is subject to any claim, obligation, penalty, fine, liability, loss, damage or
expense of whatever kind or nature, contingent or otherwise, incurred or
imposed or based upon any provision of any applicable Environmental Law and
arising out of any act or omission of Crown or any Crown Subsidiary, its
employees, agents or representatives or, to the knowledge of Crown, arising out
of the ownership, use, control or operation by Crown or any Crown Subsidiary of
any plant, facility, site, area or property (including any plant, facility,
site, area or property currently or previously owned or leased by Crown or any
Crown Subsidiary) or any other area on which Crown or any Crown Subsidiary is
conducting or has conducted its business or operations at or from which any
Hazardous Materials were Released into the environment and there is no
reasonable basis for any such notice and, to the knowledge of Crown, none are
threatened or foreseen; and
43
(g) to the knowledge of Crown, none of the assets owned by Crown or
any Crown Subsidiary or any real property owned or leased by Crown or any Crown
Subsidiary contain any friable asbestos, Polychlorinated biphenyls or
underground storage tanks.
Section 4.14 Stockholders' Rights Agreement.
(a) Other than Crown's existing Amended and Restated Rights Agreement
dated as of September 18, 2000 between Crown and Mellon Investor Services LLC
(as successor to ChaseMellon Shareholder Services, L.L.C.), as rights agent
(the "Rights Agreement"), neither Crown nor any Crown Subsidiary has adopted,
or intends to adopt, a stockholders' rights agreement or any similar plan or
agreement which limits or impairs the ability to purchase, or become the direct
or indirect beneficial owner of, capital shares or any other equity or debt
securities of Crown or any of the Crown Subsidiaries.
(b) Crown or the Crown Board, as the case may be, has taken all
necessary actions so as to render the Rights Agreement inapplicable to this
Agreement, the Merger, the Stockholders Agreement and the transactions
contemplated hereby and thereby.
Section 4.15 Brokers. No broker, investment banker, financial advisor
or other person, other than the Crown Financial Advisors, the fees and expenses
of which will be paid by Crown, is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
Merger and the other transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Crown. Crown has furnished to Global a
true and complete copy of all agreements between Crown and any Crown Financial
Advisor relating to the Merger and the other transactions contemplated by this
Agreement.
Section 4.16 Foreign Corrupt Practices Act and International Trade
Sanctions. Neither Crown, nor any Crown Subsidiaries, nor any of their
respective directors, officers, agents, employees or any other persons acting
on their behalf has, in connection with the operation of their respective
businesses, (i) used any corporate or other funds for unlawful contributions,
payments, gifts or entertainment, or made any unlawful expenditures relating to
political activity to government officials, candidates or members of political
parties or organizations, or established or maintained any unlawful or
unrecorded funds in violation of Section 104 of the Foreign Corrupt Practices
Act of 1977, as amended, or any other similar applicable foreign, Federal or
state Law, (ii) paid, accepted or received or any unlawful contributions,
payments, expenditures or gifts, or (iii) violated or operated in noncompliance
with any export restrictions, anti-boycott regulations, embargo regulations or
other applicable domestic or foreign Laws, except, in the case of clauses (i),
(ii) and (iii), as has not had and is not reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section 4.17 Ownership of Global Common StockSection 4.18 . As of the
date of this Agreement, none of Crown or any Crown Subsidiaries beneficially
own (within the meaning of Section 13 of the Exchange Act and the rules and
regulations promulgated thereunder and within the meaning set forth in Section
203 of the DGCL) any shares of Global Common Stock. Other than as contemplated
by the Transaction Agreements, as of the date of this Agreement, none of Crown
or any Crown Subsidiaries are a party to any contract, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of any
shares of Global Common Stock.
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ARTICLE V
COVENANTS
---------
Section 5.1 Conduct of Global's Business Pending the Merger.
(a) Global covenants and agrees that between the date of this
Agreement and the earlier of the Effective Time and the termination of this
Agreement in accordance with Section 7.1, except as otherwise consented to by
Crown (such consent not to be unreasonably withheld or delayed), and except as
disclosed in Section 5.1(a) of the Global Disclosure Letter or as otherwise
contemplated by this Agreement, (i) the business of Global and the Global
Subsidiaries shall be conducted only in, and Global and the Global Subsidiaries
shall not take any action except in, the ordinary course of business, in all
material respects, and in a manner consistent with past practice, in all
material respects, and (ii) Global and the Global Subsidiaries shall use
reasonable best efforts to preserve intact their business organizations, to
keep available the services of their current officers and key employees and to
preserve, in all material respects, the current relationships of Global and the
Global Subsidiaries with customers, suppliers, licensors, licensees,
distributors and other persons with which Global or the Global Subsidiaries
have business dealings.
(b) Global covenants and agrees that between the date of this
Agreement and the earlier of the Effective Time and the termination of this
Agreement in accordance with Section 7.1, except as otherwise consented to by
Crown (such consent not to be unreasonably withheld or delayed) and except as
disclosed in Section 5.1(b) of the Global Disclosure Letter or as otherwise
contemplated by this Agreement or as otherwise required to maintain Global's
status as a REIT, Global shall not, nor shall Global permit any of the Global
Subsidiaries to: (i) declare or pay any dividends on or make other
distributions (whether in cash, stock or property) in respect of any of its
capital stock, except (x) for dividends and distributions by a direct or
indirect wholly owned Global Subsidiary to its parent (without further
distribution), (y) for the Global Third Quarter Dividend and (z) as provided in
Section 5.1(e); (ii) subdivide, reclassify, recapitalize, split, combine or
exchange or enter into any similar transaction with respect to any of its
capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
capital stock, except for any split, combination or reclassification of capital
stock of a wholly-owned Global Subsidiary, or any issuance or authorization or
proposal to issue or authorize any securities of a wholly-owned Global
Subsidiary to Global or another wholly-owned Global Subsidiary; (iii)
repurchase, redeem or otherwise acquire any shares of its capital stock or any
Global Stock Rights, other than in connection with (A) the forfeiture or
expiration of outstanding Global Restricted Shares, Global Deferred Shares,
Global Options and Global Warrants and (B) the withholding of shares of Global
Common Stock to satisfy Tax obligations with respect to Global Restricted
Shares and Global Deferred Shares pursuant to any obligations contained in the
Omnibus Plan; (iv) issue, deliver or sell, or authorize, propose or reserve for
issuance, delivery or sale of, or otherwise encumber any shares of its capital
stock or any Global Stock Rights, other than the issuance of shares upon the
exercise of Global Options and Global Warrants or the issuance of shares upon
the vesting of Global Deferred Shares, in each case outstanding on the date of
this Agreement in accordance with their present terms; or (v) take any action
that would, or is reasonably expected to, result in any of the conditions set
forth in ARTICLE VI not being satisfied.
45
(c) Without limiting the generality of the foregoing, except as set
forth in Section 5.1(c) of the Global Disclosure Letter or as otherwise
expressly contemplated by any other provision of this Agreement (including
payment of fees and expenses to consummate the transactions contemplated by
this Agreement), during the period from the date of this Agreement until the
earlier of the Effective Time and the termination of this Agreement in
accordance with Section 7.1, except as otherwise consented to by Crown (such
consent not to be unreasonably withheld or delayed), Global shall not, nor
shall Global permit any of the Global Subsidiaries to: (i) amend the Global
Certificate of Incorporation, the Global Bylaws or the equivalent
organizational documents of any Global Subsidiary; (ii) create, assume or incur
any indebtedness for borrowed money or guaranty any such indebtedness of
another person, or repay, redeem or repurchase any such indebtedness other than
borrowings under existing lines of credit in a net aggregate amount not to
exceed $10,000,000 (or under any refinancing of such existing lines); (iii)
make any loans, advances or capital contributions to any other person (other
than loans or advances between any Global Subsidiaries or between Global and
any of the Global Subsidiaries); (iv) (x) sell, lease, license, sell and
leaseback, mortgage, pledge or otherwise encumber or dispose of any assets or
properties that are material, individually or in the aggregate, to Global and
the Global Subsidiaries, taken as a whole, or (y) other than communications
tower tenants and ground leases in the ordinary course of business consistent
with past practice, enter into, modify or amend any lease of property, except
for modifications or amendments that are not adverse to the Surviving Company;
(v) directly or indirectly acquire (x) by merging or consolidating with, or by
purchasing assets of, or by any other manner, any division, business or equity
interest of any person (including in a transaction involving a tender or
exchange offer, business combination, recapitalization, liquidation,
dissolution, joint venture or similar transaction) or (y) any assets, in each
case of clause (x) or (y) other than any such acquisition or acquisitions that,
individually, involves a purchase price not in excess of $20,000,000 or, in the
aggregate, involves a purchase price not in excess of $50,000,000; (vi)
implement or adopt any material change in its accounting policies other than as
may be required by applicable Law or GAAP; (vii) except to the minimum extent
required in order to comply with applicable Law or to the minimum extent
required in order to avoid adverse treatment under Section 409A of the Code or
as required by any collective bargaining agreement: (A) amend any of the terms
or conditions of employment for any of its directors or officers, (B) adopt,
enter into, terminate or amend any Global Benefit Plan, Global Benefit
Agreement or collective bargaining agreement, other than amendments that are
immaterial or administrative in nature, (C) increase in any manner the
compensation or benefits of, or pay any bonus to, any Global Participant, other
than target bonuses to be paid to Global employees in the ordinary course of
business consistent with past practice, the maximum aggregate amount of which
shall not exceed the amount set forth in Section 5.1(c)(vii) of the Global
Disclosure Letter, provided that the compensation and benefits of any Global
Participant who is not a director or officer can be increased in the ordinary
course of business consistent with past practice, (D) grant any awards under
any Global Benefit Plan (including the grant of stock options, stock
appreciation rights, performance units, restricted stock, deferred stock
awards, stock purchase rights or other stock-based or stock-related awards) or
remove or modify existing restrictions in any Global Benefit Plan or Global
Benefit Agreement on any awards made thereunder, (E) take any action to fund or
in any other way secure the payment of compensation or benefits under any
Global Benefit Plan or Global Benefit Agreement, (F) take any action to
accelerate the vesting or payment of any compensation or benefits under any
contract, Global Benefit Plan or Global Benefit Agreement or (G) make any
46
material determination under any Global Benefit Plan or Global Benefit
Agreement that is inconsistent with the ordinary course of business or past
practice, (viii) modify or amend in any material respect or terminate or cancel
any Global Material Contract or enter into any agreement or contract that would
qualify as a Global Material Contract; (ix) pay, loan or advance (other than
the payment of compensation, directors' fees or reimbursement of expenses in
the ordinary course of business) any amount to, or sell, transfer or lease any
properties or assets (real, personal or mixed, tangible or intangible) to, or
enter into any agreement with, any of its officers or directors or any
"affiliate" or "associate" of any of its officers or directors; (x) form or
commence the operations of any business or any corporation, partnership, joint
venture, business association or other business organization or division
thereof (other than in the ordinary course of business consistent with past
practice) or enter into any new line of business that is material to Global and
the Global Subsidiaries, taken as a whole; (xi) make any material tax election
or settle or compromise any material tax liability or refund; (xii) (A) pay,
discharge, settle or satisfy any claims, Litigation, liabilities or obligations
(whether absolute, accrued, asserted or unasserted, contingent or otherwise),
other than the payment, discharge, settlement or satisfaction, in the ordinary
course of business consistent with past practice or in accordance with their
terms, of liabilities (I) (1) reflected or reserved against in, or contemplated
by, the most recent consolidated financial statements (or the notes thereto)
included in the Global SEC Reports or (2) incurred in the ordinary course of
business consistent with past practice and (II) that are not material,
individually or in the aggregate, to Global and the Global Subsidiaries, taken
as a whole, (B) cancel any material indebtedness (individually or in the
aggregate) or waive any claims or rights of substantial value or (C) waive the
benefits of, or agree to modify in any manner, any confidentiality, standstill
or similar agreement to which Global or any Global Subsidiary is a party;
(xiii) make or agree to make any new capital expenditure or expenditures
(including new tower construction) which, individually, are in excess of
$5,000,000 or, in the aggregate, are in excess of $10,000,000; (xiv) take any
action that (without giving effect to any action taken or agreed to be taken by
Crown or any Crown Affiliates) would prevent Global from treating the Merger as
a "reorganization" under Section 368 of the Code; (xv) engage, directly or
indirectly, in any action, that would result in a termination or revocation of
Global's election to be treated as a REIT pursuant to Section 856(g) of the
Code; (xvi) engage, directly or indirectly, in any action, that would result in
any "prohibited transaction" Tax pursuant to Section 857(b)(6) of the Code, any
Tax on certain non-arm's length transactions pursuant to Section 857(b)(7) of
the Code or any Tax pursuant to Section 4981 of the Code; or (xvii) authorize,
or commit or agree to take, any of the foregoing actions.
(d) In connection with the continued operation of Global and the
Global Subsidiaries between the date hereof and the Closing Date, Global will
confer in good faith on a regular and frequent basis with one or more
representatives of Crown designated to Global regarding operational matters and
the general status of ongoing operations. Global acknowledges that Crown does
not and will not waive any rights it may have under this Agreement as a result
of such consultations. Nothing contained in this Agreement will give Crown,
directly or indirectly, the right to control or direct Global's operations
prior to the Effective Time.
(e) Global covenants and agrees that between the date of this
Agreement and the earlier of the Effective Time and the termination of this
Agreement in accordance with Section 7.1, Global shall take or omit to take all
actions necessary to maintain Global's status as
47
a REIT and to eliminate any U.S. Federal income tax liability as determined
under Sections 857, 858, and 4981 of the Code; provided, however, that (i)
Global shall provide Crown with reasonable prior notice thereof (which notice,
in the case of any dividend or distribution by Global pursuant hereto, shall be
provided to Crown prior to the Election Date), (ii) Global shall provide Crown
with a reasonably detailed analysis of Global's conclusions with respect
thereto and (iii) any such action or omission by Global (other than a
distribution made pursuant to this Section 5.1(e)) shall be subject to the
consent of Crown (such consent not to be unreasonably withheld or delayed).
(f) Global covenants and agrees that between the date of this
Agreement and the earlier of the Effective Time and the termination of this
Agreement in accordance with Section 7.1, Global shall make acquisitions
pursuant to its ground rights purchase program and its tower acquisition
program in the ordinary course of business consistent with past practice.
Section 5.2 Conduct of Crown's Business Pending the Merger.
(a) Crown covenants and agrees that between the date of this Agreement
and the earlier of the Effective Time and the termination of this Agreement in
accordance with Section 7.1, except as otherwise consented to by Global (such
consent not to be unreasonably withheld or delayed) and except as disclosed in
Section 5.2(a) of the Crown Disclosure Letter or as otherwise contemplated by
this Agreement, (i) the business of Crown and the Crown Subsidiaries shall be
conducted only in, and Crown and the Crown Subsidiaries shall not take any
action except in, the ordinary course of business in all material respects and
in a manner consistent with past practice in all material respects, and (ii)
Crown and the Crown Subsidiaries shall use reasonable best efforts to preserve
intact their business organizations, to keep available the services of their
current officers and key employees and to preserve, in all material respects,
the current relationships of Crown and the Crown Subsidiaries with customers,
suppliers, licensors, licensees, distributors and other persons with which
Crown or the Crown Subsidiaries have business dealings.
(b) Crown covenants and agrees that between the date of this Agreement
and the earlier of the Effective Time and the termination of this Agreement in
accordance with Section 7.1, except as otherwise consented to by Global (such
consent not to be unreasonably withheld or delayed) and except as disclosed in
Section 5.2(b) of the Crown Disclosure Letter or as otherwise contemplated by
this Agreement, Crown shall not, nor shall Crown permit any of the Crown
Subsidiaries to: (i) declare or pay any dividends on or make other
distributions (whether in cash, stock or property) in respect of any of its
capital stock, except for (x) dividends and distributions by a direct or
indirect wholly owned Crown Subsidiary to its parent and (y) regular quarterly
dividends consistent with past practice; (ii) subdivide, reclassify,
recapitalize, split, combine or exchange or enter into any similar transaction
with respect to any of its capital stock or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock, except for any split, combination or
reclassification of capital stock of a wholly-owned Crown Subsidiary, or any
issuance or authorization or proposal to issue or authorize any securities of a
wholly-owned Crown Subsidiary to Crown or another wholly-owned Crown
Subsidiary; (iii) repurchase, redeem or otherwise acquire any shares of its
capital stock, other than pursuant to any repurchase obligations contained in
any benefit plan, program or arrangement of Crown; (iv) issue, deliver
48
or sell, or authorize, propose or reserve for issuance, delivery or sale of, or
otherwise encumber any shares of its capital stock or any Crown Stock Rights,
other than (x) the issuance of shares (and attached rights to purchase
Preferred Shares (as such term is defined in the Rights Agreement) issuable
pursuant to the Rights Agreement or any other rights issued in substitution
therefor (collectively, "Rights")) upon the exercise of Crown Options and Crown
Warrants outstanding as of the date of this Agreement in accordance with their
present terms, (y) the Share Issuance and any other issuance contemplated by
this Agreement and (z) any other issuance of shares (and attached Rights) or
Crown Stock Rights in the ordinary course of business consistent with past
practice, including in connection with the hiring of new employees and employee
promotions; or (v) take any action that would, or is reasonably expected to,
result in any of the conditions set forth in ARTICLE VI not being satisfied.
(c) Without limiting the generality of the foregoing, except as set
forth in Section 5.2(c) of the Crown Disclosure Letter or as otherwise
expressly contemplated by any other provision of this Agreement (including
payment of fees and expenses to consummate the transactions contemplated by
this Agreement), during the period from the date of this Agreement until the
earlier of the Effective Time and the termination of this Agreement in
accordance with Section 7.1, except as otherwise consented to by Global (such
consent not to be unreasonably withheld or delayed), Crown shall not, nor shall
Crown permit any of the Crown Subsidiaries to: (i) amend the Crown Certificate
of Incorporation, the Crown Bylaws or the equivalent organizational documents
of any Crown Subsidiary, except for such amendments that do not have an adverse
effect on the Merger; (ii) implement or adopt any material change in its
accounting policies other than as may be required by applicable Law or GAAP;
(iii) take any action that (without giving effect to any action taken or agreed
to be taken by Global or any Global Affiliates) would prevent Crown from
treating the Merger as a "reorganization" under Section 368 of the Code; (iv)
take any other action outside of the ordinary course of business consistent
with past practice that would require the approval of the Crown Board under the
DGCL; or (v) authorize, or commit or agree to take, any of the foregoing
actions.
(d) Subject to applicable Law, in connection with the continued
operation of Crown and the Crown Subsidiaries between the date hereof and the
Closing Date, Crown will confer in good faith, from time to time and in such a
manner as does not disrupt Crown's business, with one or more representatives
of Global designated to Crown regarding operational matters and the general
status of ongoing operations. Crown acknowledges that Global does not and will
not waive any rights it may have under this Agreement as a result of such
consultations. Nothing contained in this Agreement will give Global, directly
or indirectly, the right to control or direct Crown's operations prior to the
Effective Time.
Section 5.3 Access to Information; Confidentiality.
(a) Subject to applicable Law, from the date hereof to the Effective
Time, Global shall, and shall cause the officers, directors, employees,
auditors, attorneys, financial advisors, lenders and other agents
(collectively, the "Representatives") of Global to, upon prior advance notice,
afford the Representatives of Crown and Merger Sub reasonable access during
normal business hours to the officers, agents, properties, offices and other
facilities, books and records of Global and the Global Subsidiaries, and shall
furnish (i) Crown and Merger Sub with all financial, tax, operating and other
data and information as Crown and Merger Sub, through
49
their Representatives, may reasonably request and (ii) Crown with a copy of
each report, schedule, registration statement and other document filed by it
during such period pursuant to the requirements of Federal or state securities
laws. Global shall furnish to Crown and Merger Sub monthly financial and
operating data and information within thirty (30) days following the end of
each calendar month. All information provided pursuant to this Section 5.3(a)
shall be subject to the terms of the confidentiality agreement between Crown
and Global, dated August 28, 2006 (the "Confidentiality Agreement").
(b) Subject to applicable Law, from the date hereof to the Effective
Time, Crown shall, and shall cause the Representatives of Crown to, upon prior
advance notice, afford the Representatives of Global reasonable access during
normal business hours to the officers, agents, properties, offices and other
facilities, books and records of Crown and the Crown Subsidiaries, and shall
furnish (i) Global with all financial, tax, operating and other data and
information as Global, through its Representatives, may reasonably request and
(ii) Global with a copy of each report, schedule, registration statement and
other document filed by it during such period pursuant to the requirements of
Federal or state securities laws. Crown shall furnish to Global monthly
financial and operating data and information within thirty (30) days following
the end of each calendar month. All information provided pursuant to this
Section 5.3(b) shall be subject to the terms of the Confidentiality Agreement.
(c) Notwithstanding anything to the contrary in Section 5.3(a) or (b),
neither Global nor Crown nor any of their respective Subsidiaries will be
required to provide access to or to disclose information where such access or
disclosure would jeopardize the attorney-client privilege of such party. The
parties will use their reasonable best efforts to make appropriate substitute
arrangements to permit reasonable disclosure under circumstances in which the
restrictions of the preceding sentence apply.
Section 5.4 Notification of Certain Matters. Global shall give prompt
notice to Crown of the occurrence, or nonoccurrence, of any event which is
reasonably expected to result in a failure of the condition set forth in either
Section 6.2(a) or (b); provided, however, that the delivery of any notice
pursuant to this sentence shall not limit or otherwise affect the remedies
available hereunder to Crown. Crown shall give prompt notice to Global of the
occurrence, or nonoccurrence, of any event which is reasonably expected to
result in a failure of the condition set forth in either Section 6.3(a) or (b);
provided, however, that the delivery of any notice pursuant to this sentence
shall not limit or otherwise affect the remedies available hereunder to Global.
Section 5.5 Further Assurances.
(a) Upon the terms and subject to the conditions hereof, each of the
parties hereto shall use its reasonable best efforts to take, or cause to be
taken, all appropriate action, to do, or cause to be done, and cooperate to do
all things necessary, proper or advisable under Law to consummate and make
effective the Merger and the other transactions contemplated by this Agreement,
including using all reasonable best efforts to (i) obtain all licenses,
permits, consents, approvals, authorizations, qualifications and orders of each
Governmental Entity and parties to contracts with Global and Global
Subsidiaries or Crown and Crown Subsidiaries as are necessary for the
consummation of the Merger and the other transactions contemplated by this
Agreement
50
and to fulfill the conditions set forth in ARTICLE VI, provided that,
in the case of consents of parties to contracts, none of Global, Crown or
Merger Sub shall be required to make any payment to any such third parties or
concede anything of value to obtain such consents, (ii) make all required
regulatory filings and applications and (iii) cause the conditions set forth in
ARTICLE VI to be satisfied as promptly as practicable. No party hereto shall
take any action that would prohibit or materially impair or delay the ability
of any party to obtain any necessary approvals of any Governmental Entity
required for the transactions contemplated by this Agreement or to otherwise
consummate the transactions contemplated by this Agreement. If at any time
after the Effective Time any further action is necessary or desirable to carry
out the purposes of this Agreement, the proper officers of each party to this
Agreement and the Surviving Company shall use all reasonable best efforts to
take all such action. For purposes of this Section 5.5, "reasonable best
efforts" may include, but shall not be deemed in each case that may arise under
this Agreement to require, the obligation to enter into a settlement,
undertaking, consent decree, stipulation or other agreement with a Governmental
Entity regarding antitrust matters that requires a party to divest or hold
separate any of its or its subsidiaries' assets.
(b) In connection with, and without limiting the foregoing, Global and
Crown shall, if required, duly file with the FTC (as defined in Section 5.5(c))
and the Antitrust Division of the DOJ (as defined in Section 5.5(c)) the
notification and report form (the "HSR Filing") required under the HSR Act with
respect to the transactions contemplated by this Agreement as promptly as
practicable. The HSR Filing shall be in substantial compliance with the
requirements of the HSR Act. Each party shall cooperate with the other party to
the extent necessary to request early termination of the waiting period
required by the HSR Act and, if requested, to promptly amend or furnish
additional information thereunder. Global and the Global Board shall (i) take
all actions necessary to ensure that no state anti-takeover statute or similar
statute or regulation is or becomes operative with respect to this Agreement,
the Merger or any other transactions contemplated by this Agreement; and (ii)
if any state anti-takeover statute or similar statute or regulation is or
becomes operative with respect to this Agreement, the Merger or any other
transaction contemplated by this Agreement, take all actions necessary to
ensure that this Agreement, the Merger and any other transactions contemplated
by this Agreement may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise to minimize the effect of such
statute or regulation on the Merger and the other transactions contemplated by
this Agreement.
(c) Each of Global and Crown shall, in connection with its obligation
to use reasonable best efforts to obtain all requisite approvals and
authorizations for the transactions contemplated by this Agreement under the
HSR Act or any other federal, state or foreign antitrust or fair trade law, use
its reasonable best efforts to (i) cooperate in all respects with each other in
connection with any filing or submission and in connection with any
investigation or other inquiry, including any proceeding initiated by a private
party, (ii) promptly inform the other party of any communication received by
such party from or given by such party to, the Antitrust Division of the
Department of Justice (the "DOJ"), the Federal Trade Commission (the "FTC") or
any other Governmental Entity and of any material communication received or
given in connection with any proceeding by a private party, in each case
regarding any of the transactions contemplated hereby, (iii) permit the other
party, or the other party's legal counsel, to review any communication given by
it to, and consult with each other in advance of any meeting or conference
with, the DOJ, the FTC or any such other Governmental Entity or, in
51
connection with any proceeding by a private party, with any other person, and
(iv) give the other party the opportunity to attend and participate in such
meetings and conferences.
(d) If any objections are asserted with respect to the transactions
contemplated hereby under any Law or if any suit is instituted by any
Governmental Entity or any private party challenging any of the transactions
contemplated hereby as violative of any Law, each of Global and Crown shall use
its reasonable best efforts to resolve any such objections or challenges as
such Governmental Entity or private party may have to such transactions under
such Law so as to permit consummation of the transactions contemplated by this
Agreement.
(e) Crown shall perform, or cause to be performed, when due all
obligations of Merger Sub under this Agreement.
Section 5.6 No Solicitation; Board Recommendation.
(a) Global.
(i) Global shall not, nor shall it authorize or permit any of
the Global Subsidiaries or its or their Representatives to, directly
or indirectly, (A) solicit, initiate or encourage, or take any other
action designed to, or which is reasonably expected to, facilitate,
any Global Takeover Proposal, (B) enter into any agreement with
respect to any Global Takeover Proposal or (C) enter into, continue or
otherwise participate in any discussions or negotiations regarding, or
furnish to any person any information with respect to, or otherwise
cooperate with, any proposal that constitutes, or is reasonably
expected to lead to, any Global Takeover Proposal. Global shall, and
shall cause the Global Subsidiaries and its Representatives to,
immediately cease and cause to be terminated all existing discussions
or negotiations with any person conducted heretofore with respect to
any proposal that constitutes, or is reasonably expected to lead to,
any Global Takeover Proposal and request the prompt return or
destruction of all confidential information previously furnished.
Notwithstanding the foregoing, at any time prior to obtaining the
Global Stockholder Approval, in response to a bona fide written Global
Takeover Proposal that the Global Board determines in good faith
(after consultation with outside counsel and a financial advisor of
nationally recognized reputation) constitutes, or is reasonably
expected to lead to, a Global Superior Proposal (as defined below),
and which Global Takeover Proposal was not solicited after the date
hereof, was made after the date hereof and did not otherwise result
from a breach of this Section 5.6(a)(i), Global may, if a majority of
the Global Board determines in good faith (after receiving the advice
of outside counsel) that it is necessary to take such actions in order
to comply with its fiduciary duties to the stockholders of Global
under applicable Law, and subject to compliance with this Section
5.6(a)(i) and Section 5.6(a)(iii) and after giving Crown written
notice of such determination, (x) furnish information with respect to
Global and the Global Subsidiaries to the person making such Global
Takeover Proposal (and its Representatives) pursuant to a customary
confidentiality
52
(which agreement shall contain a customary "standstill" or similar
covenant) not less restrictive of such person than the Confidentiality
Agreement (including with respect to the "standstill" or similar
covenant); provided that (1) all such information has previously been
provided to Crown or is provided to Crown prior to the time it is
provided to such person and (2) such customary confidentiality
agreement expressly provides the right for Global to comply with the
terms of this Agreement, including Section 5.6(a)(ii), and (y)
participate in discussions or negotiations with the person making such
Global Takeover Proposal (and its Representatives) regarding such
Global Takeover Proposal. Without limiting the foregoing, it is agreed
that any violation of the restrictions set forth in this Section
5.6(a)(i) by any Representative or affiliate of Global or any Global
Subsidiary shall be deemed to be a breach of this Section 5.6(a)(i) by
Global.
The term "Global Takeover Proposal" means any inquiry, proposal or
offer from any person relating to, or that is reasonably expected to lead to,
any direct or indirect acquisition or purchase, in one transaction or a series
of transactions, of assets or businesses that constitute 15% or more of the
revenues, net income, EBITDA (earnings before interest expense, taxes,
depreciation and amortization) or the assets of Global and the Global
Subsidiaries, taken as a whole, or 15% or more of any class of equity
securities of Global or any Global Subsidiary, any tender offer or exchange
offer that if consummated would result in any person beneficially owning 15% or
more of any class of equity securities of Global or any Global Subsidiary, or
any merger, consolidation, business combination, recapitalization, liquidation,
dissolution, joint venture, binding share exchange or similar transaction
involving Global or any Global Subsidiary pursuant to which any person or the
stockholders of any person would own 15% or more of any class of equity
securities of Global or any Global Subsidiary or of any resulting parent
company of Global, other than the transactions contemplated by this Agreement.
The term "Global Superior Proposal" means a bona fide Global Takeover
Proposal (provided that for purposes of this definition references to 15% in
the definition of "Global Takeover Proposal" shall be deemed to be references
to 50%) which the Global Board determines in good faith (after consultation
with outside counsel and a financial advisor of nationally recognized
reputation) to be (i) more favorable to the stockholders of Global from a
financial point of view than the Merger, taking into account all relevant
factors (including all the terms and conditions of such proposal and this
Agreement (including any changes to the terms of this Agreement proposed by
Crown in response to such offer or otherwise)) and (ii) reasonably capable of
being completed, taking into account all financial, legal, regulatory and other
aspects of such proposal.
(ii) Neither the Global Board nor any committee thereof
shall, (A) (1) withdraw (or qualify or modify in a manner adverse to
Crown or Merger Sub), or publicly propose to withdraw (or qualify or
modify in a manner adverse to Crown or Merger Sub), the adoption,
approval, recommendation or declaration of advisability by such board
of directors or any such committee thereof of this Agreement, the
Merger or the other transactions contemplated by this Agreement or (2)
recommend, adopt, approve or declare advisable, or propose publicly to
recommend, adopt, approve or declare advisable, any Global Takeover
Proposal
53
(any action described in this clause (A) being referred to as a
"Global Adverse Recommendation Change") or (B) adopt, approve,
recommend or declare advisable, or propose to adopt, approve,
recommend or declare advisable, or allow Global or any of the Global
Subsidiaries to execute or enter into, any letter of intent,
memorandum of understanding, agreement in principle, merger agreement,
acquisition agreement, option agreement, joint venture agreement,
partnership agreement or other similar agreement constituting or
related to, or that is intended to or is reasonably expected to lead
to, any Global Takeover Proposal (other than a confidentiality
agreement referred to in Section 5.6(a)(i) pursuant to and in
accordance with the limitations set forth therein). Notwithstanding
the foregoing, at any time prior to obtaining the Global Stockholder
Approval, the Global Board may make a Global Adverse Recommendation
Change described in clause (A) above if a majority of the Global Board
determines in good faith (after receiving the advice of outside
counsel) that it is necessary to take such actions in order to comply
with its fiduciary duties to the stockholders of Global under
applicable Law; provided, however, that no such Global Adverse
Recommendation Change may be made until after the fifth calendar day
following Crown's receipt of written notice (a "Global Notice of
Adverse Recommendation") from Global advising Crown that the Global
Board intends to take such action and specifying the reasons therefor,
including the terms and conditions of any Global Superior Proposal
that is the basis of the proposed action by the Global Board (it being
understood and agreed that (x) any amendment to any material term of
such Global Superior Proposal or (y) with respect to any previous
Global Adverse Recommendation Change, any material change in the
principal stated rationale by the Global Board for such previous
Global Adverse Recommendation Change, shall, in the case of either (x)
or (y), require a new Global Notice of Adverse Recommendation and a
new five (5) calendar-day period). In determining whether to make a
Global Adverse Recommendation Change, the Global Board shall take into
account any changes to the terms of this Agreement proposed by Crown
in response to a Global Notice of Adverse Recommendation or otherwise.
(iii) In addition to the obligations of Global set forth in
Section 5.6(a)(i) and (a)(ii), (A) Global shall promptly advise Crown
orally and in writing (and in any case within 24 hours) of any Global
Takeover Proposal or any inquiry that is reasonably expected to lead
to any Global Takeover Proposal, the material terms and conditions of
any such Global Takeover Proposal or inquiry (including any changes
thereto) and the identity of the person making any such Global
Takeover Proposal or inquiry and (B) Global shall (1) keep Crown fully
and promptly informed of the status and material details (including
any change to any material term thereof) of any such Global Takeover
Proposal or inquiry and (2) provide to Crown promptly after receipt or
delivery thereof with copies of all correspondence and other written
material sent or provided to Global or any of the Global Subsidiaries
from any person that describes any of the terms or conditions of any
Global Takeover Proposal.
54
(iv) Nothing contained in this Section 5.6(a) shall prohibit
Global from taking and disclosing to its stockholders a position
contemplated by Rule 14(e)-2(a) or Rule 14(d)-9 promulgated under the
Exchange Act or from making any disclosure to Global's stockholders
if, in the good faith judgment of the Global Board, after consultation
with outside counsel, failure to so disclose would be inconsistent
with applicable Law; provided, however, that all actions taken or
agreed to be taken by Global or the Global Board or any committee
thereof shall comply with the provisions of Section 5.6(a)(ii).
(b) Crown.
(i) Crown shall not, nor shall it authorize or permit any of
the Crown Subsidiaries or its or their Representatives to, directly or
indirectly, (A) solicit, initiate or encourage, or take any other
action designed to, or which is reasonably expected to, facilitate,
any Crown Takeover Proposal (as defined below), (B) enter into any
agreement with respect to any Crown Takeover Proposal or (C) enter
into, continue or otherwise participate in any discussions or
negotiations regarding, or furnish to any person any information with
respect to, or otherwise cooperate with, any proposal that
constitutes, or is reasonably expected to lead to, any Crown Takeover
Proposal. Crown shall, and shall cause the Crown Subsidiaries and its
Representatives to, immediately cease and cause to be terminated all
existing discussions or negotiations with any person conducted
heretofore with respect to any proposal that constitutes, or is
reasonably expected to lead to, any Crown Takeover Proposal and
request the prompt return or destruction of all confidential
information previously furnished. Notwithstanding the foregoing, at
any time prior to obtaining the Crown Stockholder Approval, in
response to a bona fide written Crown Takeover Proposal that the Crown
Board determines in good faith (after consultation with outside
counsel and a financial advisor of nationally recognized reputation)
constitutes, or is reasonably expected to lead to, a Crown Superior
Proposal (as defined below), and which Crown Takeover Proposal was not
solicited after the date hereof, was made after the date hereof and
did not otherwise result from a breach of this Section 5.6(b)(i),
Crown may, if a majority of the Crown Board determines in good faith
(after receiving the advice of outside counsel) that it is necessary
to take such actions in order to comply with its fiduciary duties to
the stockholders of Crown under applicable Law, and subject to
compliance with this Section 5.6(b)(i) and Section 5.6(b)(iii) and
after giving Global written notice of such determination, (x) furnish
information with respect to Crown and the Crown Subsidiaries to the
person making such Crown Takeover Proposal (and its Representatives)
pursuant to a customary confidentiality agreement (which agreement
shall contain a customary "standstill" or similar covenant) not less
restrictive of such person than the Confidentiality Agreement
(including with respect to the "standstill" or similar covenant);
provided that (1) all such information has previously been provided to
Global or is provided to Global prior to the time it is provided to
such person and (2) such customary confidentiality agreement expressly
provides the right for Crown to comply with the terms of this
Agreement, including Section 5.6(b)(ii), and (y) participate in
discussions or negotiations with the person making such
55
Crown Takeover Proposal (and its Representatives) regarding such Crown
Takeover Proposal. Without limiting the foregoing, it is agreed that
any violation of the restrictions set forth in this Section 5.6(b)(i)
by any Representative or affiliate of Crown or any Crown Subsidiary
shall be deemed to be a breach of this Section 5.6(b)(i) by Crown.
The term "Crown Takeover Proposal" means any inquiry, proposal or
offer from any person relating to, or that is reasonably expected to lead to,
any direct or indirect acquisition or purchase, in one transaction or a series
of transactions, of assets or businesses that constitute 15% or more of the
revenues, net income, EBITDA (earnings before interest expense, taxes,
depreciation and amortization) or the assets of Crown and the Crown
Subsidiaries, taken as a whole, or 15% or more of any class of equity
securities of Crown or any Crown Subsidiary, any tender offer or exchange offer
that if consummated would result in any person beneficially owning 15% or more
of any class of equity securities of Crown or any Crown Subsidiary, or any
merger, consolidation, business combination, recapitalization, liquidation,
dissolution, joint venture, binding share exchange or similar transaction
involving Crown or any Crown Subsidiary pursuant to which any person or the
stockholders of any person would own 15% or more of any class of equity
securities of Crown or any Crown Subsidiary or of any resulting parent company
of Crown, other than the transactions contemplated by this Agreement; provided,
however, that any inquiry, proposal or offer relating solely to the acquisition
of any such (i) equity securities of any Crown Subsidiaries, (ii) assets or
(iii) businesses, in each case, that are primarily involved with an activity
relating to 5 MHz of spectrum rights in the 1670-1675 MHz band is excluded from
this definition of "Crown Takeover Proposal".
The term "Crown Superior Proposal" means a bona fide Crown Takeover
Proposal (provided that for purposes of this definition references to 15% in
the definition of "Crown Takeover Proposal" shall be deemed to be references to
50%) which the Crown Board determines in good faith (after consultation with
outside counsel and a financial advisor of nationally recognized reputation) to
be (i) more favorable to the stockholders of Crown from a financial point of
view than the Merger, taking into account all relevant factors (including all
the terms and conditions of such proposal and this Agreement (including any
changes to the terms of this Agreement proposed by Global in response to such
offer or otherwise)) and (ii) reasonably capable of being completed, taking
into account all financial, legal, regulatory and other aspects of such
proposal.
(ii) Neither the Crown Board nor any committee thereof shall,
(A) (1) withdraw (or qualify or modify in a manner adverse to Global),
or publicly propose to withdraw (or qualify or modify in a manner
adverse to Global), the adoption, approval, recommendation or
declaration of advisability by such board of directors or any such
committee thereof of this Agreement, the Merger or the other
transactions contemplated by this Agreement (including the Share
Issuance) or (2) recommend, adopt, approve or declare advisable, or
propose publicly to recommend, adopt, approve or declare advisable,
any Crown Takeover Proposal (any action described in this clause (A)
being referred to as a "Crown Adverse
56
Recommendation Change") or (B) adopt, approve, recommend or declare
advisable, or propose to adopt, approve, recommend or declare
advisable, or allow Crown or any of the Crown Subsidiaries to execute
or enter into, any letter of intent, memorandum of understanding,
agreement in principle, merger agreement, acquisition agreement,
option agreement, joint venture agreement, partnership agreement or
other similar agreement constituting or related to, or that is
intended to or is reasonably expected to lead to, any Crown Takeover
Proposal (other than a confidentiality agreement referred to in
Section 5.6(b)(i) pursuant to and in accordance with the limitations
set forth therein). Notwithstanding the foregoing, at any time prior
to obtaining the Crown Stockholder Approval, the Crown Board may make
a Crown Adverse Recommendation Change described in clause (A) above if
a majority of the Crown Board determines in good faith (after
receiving the advice of outside counsel) that it is necessary to take
such actions in order to comply with its fiduciary duties to the
stockholders of Crown under applicable Law; provided, however, that no
such Crown Adverse Recommendation Change may be made until after the
fifth calendar day following Global's receipt of written notice (a
"Crown Notice of Adverse Recommendation") from Crown advising Global
that the Crown Board intends to take such action and specifying the
reasons therefor, including the terms and conditions of any Crown
Superior Proposal that is the basis of the proposed action by the
Crown Board (it being understood and agreed that (x) any amendment to
any material term of such Crown Superior Proposal or (y) with respect
to any previous Crown Adverse Recommendation Change, any material
change in the principal stated rationale by the Crown Board for such
previous Crown Adverse Recommendation Change, shall, in the case of
either (x) or (y), require a new Crown Notice of Adverse
Recommendation and a new five (5) calendar-day period). In determining
whether to make a Crown Adverse Recommendation Change, the Crown Board
shall take into account any changes to the terms of this Agreement
proposed by Global in response to a Crown Notice of Adverse
Recommendation or otherwise.
(iii) In addition to the obligations of Crown set forth in
Sections 5.6(b)(i) and (b)(ii), (A) Crown shall promptly advise Global
orally and in writing (and in any case within 24 hours) of any Crown
Takeover Proposal or any inquiry that is reasonably expected to lead
to any Crown Takeover Proposal, the material terms and conditions of
any such Crown Takeover Proposal or inquiry (including any changes
thereto) and the identity of the person making any such Crown Takeover
Proposal or inquiry and (B) Crown shall (1) keep Global fully and
promptly informed of the status and material details (including any
change to any material term thereof) of any such Crown Takeover
Proposal or inquiry and (2) provide to Global promptly after receipt
or delivery thereof with copies of all correspondence and other
written material sent or provided to Crown or any of the Crown
Subsidiaries from any person that describes any of the terms or
conditions of any Crown Takeover Proposal.
(iv) Nothing contained in this Section 5.6(b) shall prohibit
Crown from taking and disclosing to its stockholders a position
contemplated by Rule 14(e)-
57
2(a) or Rule 14(d)-9 promulgated under the Exchange Act or from making
any disclosure to Crown's stockholders if, in the good faith judgment
of the Crown Board, after consultation with outside counsel, failure
to so disclose would be inconsistent with applicable Law; provided,
however, that all actions taken or agreed to be taken by Crown or the
Crown Board or any committee thereof shall comply with the provisions
of Section 5.6(b)(ii).
Section 5.7 Stockholder Litigation. Global shall give Crown and
Crown's outside counsel the opportunity to participate in the defense or
settlement of any stockholder Litigation against Global and its directors
relating to the Merger or the other transactions contemplated by this
Agreement; provided, however, that no such settlement shall be agreed to
without Crown's prior written consent, which consent shall not be unreasonably
withheld or delayed. Crown shall consult in good faith with Global and keep
Global reasonably informed with respect to any stockholder Litigation against
Crown and its directors relating to the Merger or the other transactions
contemplated by this Agreement. Crown shall not agree, prior to the Effective
Time, to any settlement of such Litigation against it and its directors if such
settlement agreement (i) does not resolve any equivalent claims against Global
and its directors, (ii) contains any admission of liability by Global or
Global's directors or officers or (iii) results in any non-monetary relief
being granted against Global with effect prior to the Effective Time.
Section 5.8 Indemnification.
(a) It is understood and agreed that all rights to indemnification by
Global now existing in favor of each present and former director and officer of
Global (the "Indemnified Parties") for acts or omissions by such directors and
officers occurring at or prior to the Effective Time as provided in the Global
Certificate of Incorporation or the Global Bylaws, in each case as in effect on
the date of this Agreement, or pursuant to any other agreements in effect on
the date hereof, copies of which have been provided to Crown, shall survive the
Merger, and shall continue in full force and effect in accordance with the
terms of the Global Certificate of Incorporation, the Global Bylaws and such
other agreements from the Effective Time until the expiration of the applicable
statute of limitations with respect to any claims against such directors or
officers arising out of such acts or omissions. Crown shall perform, or cause
the Surviving Company to perform, in a timely manner, the Surviving Company's
obligations with respect thereto. Crown agrees that any claims for
indemnification hereunder as to which it has received written notice prior to
the expiration of the statute of limitations applicable thereto shall survive,
whether or not such claims shall have been finally adjudicated or settled as of
such date.
(b) Crown shall cause the Surviving Company to, and the Surviving
Company shall, maintain in effect for six years from the Effective Time, if
available, the directors' and officers' liability insurance ("D&O Insurance")
containing the coverages, terms, conditions and limitations contained in the
policies currently maintained by Global (provided that the Surviving Company
may substitute therefor policies of at least the same coverage containing terms
and conditions which are not materially less favorable) with respect to acts or
omissions occurring prior to the Effective Time; provided, however, that in no
event shall the Surviving Company be required to expend pursuant to this
Section 5.8(b) more than an amount per year equal to two hundred percent (200%)
of current annual premiums paid by Global for the D&O Insurance. In the event
that, but for the proviso to the immediately preceding sentence, the Surviving
Company would be required to expend more than two hundred percent (200%) of
current annual premiums, the Surviving Company
58
shall obtain the maximum amount of such insurance obtainable by payment of
annual premiums equal to two hundred percent (200%) of current annual premiums.
(c) The provisions of this Section 5.8 will survive the Effective Time
and are intended to be for the benefit of, and will be enforceable by, each
Indemnified Party and his or her heirs and representatives. Crown will pay or
cause to be paid (as incurred) all out-of-pocket expenses, including reasonable
fees and expenses of counsel, that an Indemnified Party may incur in enforcing
the indemnity and other obligations provided for in this Section 5.8 (subject
to reimbursement of Crown if the Indemnified Party is subsequently determined
not be entitled to indemnification under Section 5.8(a)).
(d) If Crown or any of its successors or assigns (i) consolidates with
or merges into any other person and is not the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers or
conveys all or substantially all of its properties and assets to any person,
then, and in each such case, to the extent necessary, proper provisions will be
made so that the successors and assigns of Crown, as the case may be, will
assume the obligations set forth in this Section 5.8.
Section 5.9 Public Announcements. Global and Crown shall consult with
each other before issuing, and provide each other the opportunity to review and
comment upon any press release or otherwise making any public statements with
respect to this Agreement or the Merger and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by Law or any listing agreement with a national securities
exchange or trading system to which Global or Crown is a party. The parties
agree that the initial press release(s) to be issued with respect to the
transactions contemplated by this Agreement shall be in the form agreed to by
the parties.
Section 5.10 Registration Statement; Joint Proxy Statement.
(a) As promptly as practicable after the execution of this Agreement,
(i) Crown and Global shall jointly prepare and file with the SEC the joint
proxy statement to be sent to the stockholders of Global and to the
stockholders of Crown relating to the meeting of Global's stockholders (the
"Global Stockholders' Meeting") and to the meeting of Crown's stockholders (the
"Crown Stockholders' Meeting") to be held to consider, in the case of Global's
stockholders, the approval and adoption of this Agreement, and in the case of
Crown's stockholders, the approval of the Share Issuance (such joint proxy
statement, as amended or supplemented, being referred to herein as the "Joint
Proxy Statement") and (ii) Crown shall prepare and file with the SEC a
registration statement on Form S-4 (together with all amendments thereto, the
"Registration Statement") in which the Joint Proxy Statement shall be included
as a prospectus, in connection with the registration under the Securities Act
of the shares of Crown Common Stock to be issued to the stockholders of Global
pursuant to the Merger. Crown and Global shall use their reasonable best
efforts to cause the Registration Statement to become effective as promptly as
practicable, and, prior to the Effective Time of the Registration Statement,
Crown shall take all or any action (other than qualifying to do business in any
jurisdiction in which it is not now so qualified) required under any applicable
federal or state securities laws in connection with such actions and the
preparation of the Registration
59
Statement and Joint Proxy Statement. As promptly as practicable after the
Registration Statement shall have become effective, Global shall mail the Joint
Proxy Statement to its stockholders and Crown shall mail the Joint Proxy
Statement to its stockholders.
(b) No amendment to the Joint Proxy Statement or the Registration
Statement will be made by Crown or Global without the approval of the other
party (such approval not to be unreasonably withheld or delayed). Crown and
Global each will advise the other, promptly after they receive notice thereof,
of the time when the Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of any stop order, of
the suspension of the qualification of the Crown Common Stock issuable in
connection with the Merger for offering or sale in any jurisdiction, or of any
request by the SEC for amendment of the Joint Proxy Statement or the
Registration Statement or comments thereon and responses thereto or requests by
the SEC for additional information.
(c) If, prior to the Effective Time, any event occurs with respect to
Global or any Global Subsidiary, or any change occurs with respect to other
information supplied by Global for inclusion in the Joint Proxy Statement or
the Registration Statement, which is required to be described in an amendment
of, or a supplement to, the Joint Proxy Statement or the Registration
Statement, Global shall promptly notify Crown of such event, and Global and
Crown shall cooperate in the prompt filing with the SEC of any necessary
amendment or supplement to the Joint Proxy Statement and Registration Statement
and, as required by Law, in disseminating the information contained in such
amendment or supplement to Global's stockholders and to Crown's stockholders.
(d) If, prior to the Effective Time, any event occurs with respect to
Crown or any Crown Subsidiary, or any change occurs with respect to other
information supplied by Crown for inclusion in the Joint Proxy Statement or the
Registration Statement, which is required to be described in an amendment of,
or a supplement to, the Joint Proxy Statement or the Registration Statement,
Crown shall promptly notify Global of such event, and Crown and Global shall
cooperate in the prompt filing with the SEC of any necessary amendment or
supplement to the Joint Proxy Statement and the Registration Statement and, as
required by Law, in disseminating the information contained in such amendment
or supplement to Global's stockholders and to Crown's stockholders.
Section 5.11 Stockholders' Meetings.
(a) Global shall cause the Global Stockholders' Meeting to be duly
called and held as soon as practicable for the purpose of obtaining the Global
Stockholder Approval, and Global shall use its reasonable best efforts to hold
the Global Stockholders' Meeting as soon as practicable after the date on which
the Registration Statement becomes effective and on the same date as the Crown
Stockholders' Meeting. Global shall take all action necessary in accordance
with applicable Law, the Global Certificate of Incorporation and the Global
Bylaws to duly call, give notice of and convene the Global Stockholders'
Meeting. Except in the event of a Global Adverse Recommendation Change, Global
shall (i) through the Global Board, recommend to its stockholders that they
give the Global Stockholder Approval and include such recommendation in the
Joint Proxy Statement, (ii) use its reasonable best efforts to solicit from
holders of shares of Global Common Stock entitled to vote at the Global
Stockholders' Meeting proxies in favor
60
of obtaining the Global Stockholder Approval and (iii) take all other action
necessary or, in the reasonable judgment of Crown, helpful to secure the vote
or consent of such holders required by the DGCL, the rules and regulations of
the NYSE or this Agreement to effect the Merger. Notwithstanding any Global
Adverse Recommendation Change, this Agreement shall be submitted to the
stockholders of Global at the Global Stockholders' Meeting for the purpose of
obtaining the Global Stockholder Approval and nothing contained herein shall be
deemed to relieve Global of such obligation; provided, however, that the
foregoing shall not be deemed to limit Global's right to terminate this
Agreement pursuant to and in accordance with Section 7.1(h).
(b) Crown shall cause the Crown Stockholders' Meeting to be duly
called and held as soon as practicable for the purpose of obtaining the Crown
Stockholder Approval and Crown shall use its reasonable best efforts to hold
the Crown Stockholders' Meeting as soon as practicable after the date on which
the Registration Statement becomes effective and on the same date as the Global
Stockholders' Meeting. Crown shall take all action necessary in accordance with
applicable Law, the Crown Certificate of Incorporation and the Crown Bylaws to
duly call, give notice of and convene the Crown Stockholders' Meeting. Except
in the event of a Crown Adverse Recommendation Change, Crown shall (i) through
the Crown Board, recommend to its stockholders that they give the Crown
Stockholder Approval and include such recommendation in the Joint Proxy
Statement, (ii) use its reasonable best efforts to solicit from holders of
shares of Crown Common Stock entitled to vote at the Crown Stockholders'
Meeting proxies in favor of obtaining the Crown Stockholder Approval and (iii)
take all other action necessary or, in the reasonable judgment of Global,
helpful to secure the vote or consent of such holders required by the DGCL, the
rules and regulations of the NYSE or this Agreement to effect the Merger.
Notwithstanding any Crown Adverse Recommendation Change, this Agreement shall
be submitted to the stockholders of Crown at the Crown Stockholders' Meeting
for the purpose of obtaining the Crown Stockholder Approval and nothing
contained herein shall be deemed to relieve Crown of such obligation; provided,
however, that the foregoing shall not be deemed to limit Crown's right to
terminate this Agreement pursuant to and in accordance with Section 7.1(e).
Section 5.12 NYSE Listing and De-Listing. Prior to the Effective Time,
Crown shall authorize for listing on the NYSE the shares of Crown Common Stock
issuable in connection with the Merger, subject to official notice of issuance,
as promptly as practicable after the date hereof, and in any event prior to the
Closing Date. The Surviving Company shall use its reasonable best efforts to
cause the Global Common Stock to be de-listed from the NYSE and de-registered
under the Exchange Act as soon as practicable following the Effective Time.
Section 5.13 Composition of Board of Directors of Crown. At or prior
to the Effective Time, Crown shall expand the size of the Crown Board from ten
directors to thirteen directors. Crown shall appoint each of (i) Xxxxxx Xxxxxxx
and Xxxxx Xxxxxx to the Crown Board effective as of the Effective Time and (ii)
Xxxxxx Xxxxx to the Crown Board effective as of one day following the Effective
Time. If any of Xxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxx Xxxxxx are unwilling or
unable to serve as a director of Crown commencing as of the Effective Time,
then Global shall designate another individual or individuals, as the case may
be, who must be reasonably acceptable to Crown, to serve on the Crown Board as
of the Effective Time. Notwithstanding the foregoing provisions of this Section
5.13, no individual shall be appointed
61
to the Crown Board to the extent that such individual is ineligible to serve as
a member of the Crown Board pursuant to the Crown Certificate of Incorporation,
Crown Bylaws, Crown's corporate governance guidelines, applicable listing
standards of the NYSE or any other applicable Law, rule or regulation.
Section 5.14 Tax Treatment of Merger. Each of Crown and Global shall
use reasonable best efforts to (a) cause the Merger to qualify as a
"reorganization" under Section 368(a) of the Code and (b) obtain the opinions
of counsel referred to in Section 6.2(d) and Section 6.3(d). Following the
Effective Time, neither Crown nor any of its Subsidiaries, nor any of its
affiliates, shall knowingly take any action or cause any action to be taken
which would cause the Merger to fail to so qualify as a reorganization under
Section 368(a) of the Code.
Section 5.15 Accountant Letters.
(a) Global shall use reasonable best efforts to cause Ernst & Young
LLP to deliver a letter relating to Global's fiscal years 2003, 2004 and 2005
dated not more than five days prior to the date on which the Registration
Statement shall have become effective and addressed to Global and Crown in form
and substance reasonably satisfactory to Crown and customary in scope and
substance for agreed upon procedures letters delivered by independent public
accountants in connection with registration statements and proxy statements
similar to the Registration Statement and the Joint Proxy Statement; provided
that the failure of such a letter to be delivered by Ernst & Young LLP shall
not result in a failure of a condition to Closing (including Section 6.2(b) or
(c) hereof).
(b) Crown shall use reasonable best efforts to cause KPMG LLP to
deliver a letter relating to Crown's fiscal years 2003, 2004 and 2005 dated not
more than five days prior to the date on which the Registration Statement shall
have become effective and addressed to Crown and Global in form and substance
reasonably satisfactory to Global and customary in scope and substance for
agreed upon procedures letters delivered by independent public accountants in
connection with registration statements and proxy statements similar to the
Registration Statement and the Joint Proxy Statement; provided that the failure
of such a letter to be delivered by KPMG LLP shall not result in a failure of a
condition to Closing (including Section 6.3(b) or (c) hereof).
Section 5.16 Affiliates. As soon as practicable after the date hereof,
Global shall deliver to Crown a letter identifying all persons who are, in the
opinion of Global, at the time this Agreement is submitted for adoption by the
stockholders of Global, "affiliates" of Global for purposes of Rule 145 under
the Securities Act. Global shall use its reasonable best efforts to cause each
such person to deliver to Crown on or prior to the date of mailing of the Joint
Proxy Statement, a written agreement substantially in the form attached as
Exhibit 5.16 hereto; provided that the failure of any such letter to be
delivered shall not result in a failure of a condition to Closing (including
Section 6.2(b) or (c) hereof).
Section 5.17 Standstill Agreements; Confidentiality Agreements. During
the period from the date of this Agreement through the Effective Time, neither
Crown nor Global shall terminate, amend, modify or waive any provision of any
confidentiality or standstill agreement to which it or any of its respective
Subsidiaries is a party. During such period, Crown
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or Global, as the case may be, shall enforce, to the fullest extent permitted
under applicable law, the provisions of any such agreement, including by
obtaining injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court of the United States
of America or of any state having jurisdiction.
Section 5.18 Employees.
(a) For a period of one year following the Effective Time, Crown shall
or shall cause the Surviving Company to either (i) provide the employees of
Global and the Global Subsidiaries who are employed immediately prior to the
Effective Time (the "Covered Employees") who remain employed during such period
by Crown, the Surviving Company or any of their respective Subsidiaries with
compensation and benefits (excluding equity based compensation) that are
substantially comparable, in the aggregate, to the compensation and benefits
provided by Global and the Global Subsidiaries as of the date hereof or (ii)
provide or cause the Surviving Company (or, in such case, its successors or
assigns) to provide Covered Employees who remain employed during such period by
Crown, the Surviving Company or their respective Subsidiaries with compensation
and benefits that are substantially comparable in the aggregate to those
provided to similarly situated employees of Crown and the Crown Subsidiaries.
Nothing in this Section 5.18 shall be construed as requiring, and Global shall
take no action that would have the effect of requiring, Crown or the Surviving
Company to continue any specific plans or to continue the employment of any
specific person. Furthermore, nothing in this Section 5.18 shall be construed
as prohibiting or limiting Crown or the Surviving Company from amending,
modifying or terminating any plans, programs or arrangements of Crown, Global
or the Surviving Company.
(b) For purposes of determining eligibility to participate in, and
non-forfeitable rights under, but not for purposes of benefit accrual under,
any employee benefit plan or arrangement of Crown or the Surviving Company or
any of their respective Subsidiaries, Covered Employees shall receive service
credit for service with Global (and with any predecessor or acquired entities
or any other entities for which Global granted service credit) as if such
service had been completed with Crown; provided, however, that such service
need not be recognized to the extent that such recognition would result in any
duplication of benefits for the same period of service.
(c) To the extent applicable, Crown shall or shall cause the Surviving
Company and any of their respective Subsidiaries to waive, or use reasonable
best efforts to cause its insurance carriers to waive, any pre-existing
condition limitation on participation and coverage applicable to any Covered
Employee or any of his or her covered dependents under any health or welfare
plan of Crown or the Surviving Company or any of their respective Subsidiaries
(a "New Plan") in which such Covered Employee or covered dependent shall become
eligible to participate after the Effective Time to the extent such Covered
Employee or covered dependent was no longer subject to such pre-existing
condition limitation under the corresponding Global Benefit Plan in which such
Covered Employee or such covered dependent was participating immediately before
he or she became eligible to participate in the New Plan. Crown shall or shall
cause the Surviving Company or the relevant Subsidiary of either to provide
each Covered Employee with credit for any co-payments and deductibles paid
prior to the Effective Time and during the calendar year in which the Effective
Time occurs under any
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Global Benefit Plan in satisfying any applicable co-payment and deductible
requirements for such calendar year under any New Plan in which such Covered
Employee participates after the Effective Time.
(d) Crown shall recognize, or shall cause the Surviving Company and
any of their respective Subsidiaries to recognize, any unused paid time off and
sick leave hours available to each Covered Employee as of the Effective Time
under Global's paid time off policy applicable to such Covered Employee and,
notwithstanding Section 5.18(b) hereof, to recognize service by each Covered
Employee with Global for purposes of determining eligibility for vacation and
sick leave following the Effective Time under the applicable vacation and sick
leave policies of Crown or the Surviving Company or any of their respective
Subsidiaries.
(e) Without limiting the scope of Section 8.1, nothing in this Section
5.18 shall confer any rights or remedies of any kind or description upon any
Covered Employee or any other person other than Global and Crown and their
respective successors and assigns.
Section 5.19 Rights Agreement. Except as expressly required by this
Agreement, Crown shall not, without the prior consent of Global (such consent
not to be unreasonably withheld or delayed), amend the Rights Agreement or take
any other action with respect to the Rights Agreement, including a redemption
of the Rights or any action to facilitate a Crown Takeover Proposal.
Section 5.20 Investor Agreement. Global shall terminate the Amended
and Restated Investor Agreement, dated as of March 31, 2004, by and among
Global and the Investors (as defined therein) at or prior to the Effective
Time.
ARTICLE VI
CONDITIONS
---------
Section 6.1 Conditions to the Obligation of Each Party. The respective
obligations of Global, Crown and Merger Sub to effect the Merger are subject to
the satisfaction of the following conditions, unless waived in writing by all
parties:
(a) The Global Stockholder Approval shall have been obtained;
(b) The Crown Stockholder Approval shall have been obtained;
(c) No applicable Law and no temporary restraining order, preliminary
or permanent injunction or other judgment, order or decree entered, enacted,
promulgated, enforced or issued by any court or other Governmental Entity of
competent jurisdiction in the United States or any material foreign
jurisdiction (collectively, "Judgments") shall be and remain in effect which
has the effect of prohibiting the consummation of the Merger or the other
transactions contemplated by this Agreement; provided, however, that, subject
to Section 5.5, the party asserting such condition shall have used its
reasonable best efforts to prevent the entry of any such Judgment and to appeal
as promptly as practicable any such Judgment that may be entered;
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(d) The SEC shall have declared the Registration Statement effective
and no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued by the SEC and no proceeding for that
purpose shall have been initiated or threatened in writing by the SEC;
(e) The shares of Crown Common Stock to be issued pursuant to the
Merger shall have been approved for listing on the NYSE, subject to official
notice of issuance;
(f) Any waiting period (and any extension thereof) applicable to the
consummation of the Merger under the HSR Act and any other applicable foreign
antitrust, competition or similar Law shall have expired or earlier been
terminated. Any consents, approvals and filings under any foreign antitrust,
competition or similar Law, the absence of which would prohibit the
consummation of Merger or is reasonably expected to have a Material Adverse
Effect on Crown, shall have been obtained or made;
(g) The parties shall have obtained the necessary FCC approval of
applications to transfer to the Surviving Company control over FCC licenses
currently held or controlled by Global; and
(h) There shall not be pending or threatened any suit, action or
proceeding by any Governmental Entity (i) seeking to prohibit or limit the
ownership or operation by Global, Crown or any of their respective Subsidiaries
of any material portion of the business or assets of Global, Crown or any of
their respective Subsidiaries, or to compel Global, Crown or any of their
respective Subsidiaries to dispose of or hold separate any material portion of
the business or assets of Global, Crown or any of their respective
Subsidiaries, as a result of the Merger or any other transaction contemplated
by this Agreement, (ii) seeking to impose limitations on the ability of Crown
to acquire or hold, or exercise full rights of ownership of, any shares of
Global Common Stock, including the right to vote Global Common Stock purchased
by it on all matters properly presented to the stockholders of Global, (iii)
seeking to prohibit Crown or any of its Subsidiaries from effectively
controlling in any material respect the business or operations of Global and
the Global Subsidiaries or (iv) which otherwise is reasonably likely to have a
Material Adverse Effect on Global or Crown.
Section 6.2 Conditions to Obligations of Crown and Merger Sub to
Effect the Merger. The obligations of Crown and Merger Sub to effect the Merger
are further subject to satisfaction or waiver by Global at or prior to the
Closing of the following conditions:
(a) (i) The representations and warranties of Global contained in the
first sentence of Section 3.1(a) and Sections 3.2(a) and (b), 3.3(a) and (b)
and 3.4(a)(i) of this Agreement shall be true and correct in all material
respects both as of the date of this Agreement and as of Closing as though made
on the date of the Closing (except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material
respects on and as of such earlier date) and (ii) the representations and
warranties of Global in this Agreement (other than the representations and
warranties identified in clause (i)) shall be true and correct both as of the
date of this Agreement and as of Closing as though made on the date of the
Closing (except to the extent such representations and warranties expressly
relate to an earlier date, in which case
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such representations and warranties shall be true and correct on and as of
such earlier date), except where the failure of the representations and
warranties to be so true and correct (without giving effect to any limitation
as to "materiality" or "Material Adverse Effect" set forth therein) does not
have, and is not reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect on Global;
(b) Global shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing Date;
(c) Global shall have delivered to Crown a certificate, signed by the
chief executive officer and chief financial officer of Global, to the effect
that each of the conditions specified in (a) and (b) above is satisfied in all
respects;
(d) Crown shall have received from Cravath, Swaine & Xxxxx LLP,
counsel to Crown, on a date immediately prior to the mailing of the Joint Proxy
Statement and on the date of Closing, opinions, in each case dated as of such
respective dates and stating that the Merger will be treated for Federal income
tax purposes as a reorganization within the meaning of Section 368(a) of the
Code and that Global and Crown will each be a party to that reorganization
within the meaning of Section 368(b) of the Code. In rendering such opinions,
counsel for Crown shall be entitled to rely upon customary representations of
officers of Crown, Merger Sub and Global; and
(e) Since the date of this Agreement there shall not have been any
event, change, effect or development that, individually or in the aggregate,
has had or is reasonably expected to have a Material Adverse Effect on Global.
Section 6.3 Conditions to Obligations of Global to Effect the Merger.
The obligations of Global to effect the Merger are further subject to
satisfaction or waiver by Crown at or prior to the Closing of the following
conditions:
(a) (i) The representations and warranties of Crown and Merger Sub
contained in the first sentence of Section 4.1(a) and Sections 4.2(a), (b) and
(c), 4.3(a), (b), (c) and (d) and 4.4(a)(i) and (ii) of this Agreement shall be
true and correct in all material respects both as of the date of this Agreement
and as of Closing as though made on the date of the Closing (except to the
extent such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall be true and correct in
all material respects on and as of such earlier date) and (ii) the
representations and warranties of Crown and Merger Sub in this Agreement (other
than the representations and warranties identified in clause (i)) shall be true
and correct both as of the date of this Agreement and as of Closing as though
made on the date of the Closing (except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct on and as of such
earlier date), except where the failure of the representations and warranties
to be so true and correct (without giving effect to any limitation as to
"materiality" or "Material Adverse Effect" set forth therein) does not have,
and is not reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect on Crown;
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(b) Crown and Merger Sub shall have performed in all material respects
all obligations required to be performed by them under this Agreement at or
prior to the Closing Date;
(c) Each of Crown and Merger Sub shall have delivered to Global a
certificate, signed by the chief executive officer and chief financial officer
of Crown, to the effect that each of the conditions specified in (a) and (b)
above is satisfied in all respects;
(d) Global shall have received from Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel to Global, on a date immediately prior to the mailing of the
Joint Proxy Statement and on the date of Closing, opinions, in each case dated
as of such respective dates and stating that the Merger will be treated for
Federal income tax purposes as a reorganization within the meaning of Section
368(a) of the Code and that Global and Crown will each be a party to that
reorganization within the meaning of Section 368(b) of the Code. In rendering
such opinions, counsel for Global shall be entitled to rely upon customary
representations of officers of Crown, Merger Sub and Global; and
(e) Since the date of this Agreement there shall not have been any
event, change, effect or development that, individually or in the aggregate,
has had or is reasonably expected to have a Material Adverse Effect on Crown.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
Section 7.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether before
or, subject to the terms hereof, after receipt of the Global Stockholder
Approval or the Crown Stockholder Approval, as applicable:
(a) by mutual written consent of Global, Crown and Merger Sub;
(b) by either Global or Crown:
(i) if the Merger shall not have been consummated by the nine
(9) month anniversary of the execution date of this Agreement (the
"Outside Date"); provided, however, that the right to terminate this
Agreement pursuant to this Section 7.1(b)(i) shall not be available to
any party whose willful breach of a representation or warranty or
willful failure to fulfill any covenant or agreement contained in this
Agreement has been a principal cause of, or resulted in, the failure
of the Merger to be consummated on or by such date;
(ii) if the Crown Stockholder Approval shall not have been
obtained at the Crown Stockholders' Meeting duly convened therefor or
at any adjournment or postponement thereof at which a proper vote on
such matters was taken;
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(iii) if the Global Stockholder Approval shall not have been
obtained at the Global Stockholders' Meeting duly convened therefor or
at any adjournment or postponement thereof at which a proper vote on
such matters was taken;
(iv) if any Judgment having any of the effects set forth in
Section 6.1(c) shall be in effect and shall have become final and
nonappealable; or
(v) if any condition to the obligation of such party to
consummate the Merger set forth in Section 6.2 (in the case of Crown)
or 6.3 (in the case of Global) becomes incapable of satisfaction prior
to the Outside Date; provided, however, that the failure of such
condition is not the result of a willful breach of this Agreement by
the party seeking to terminate this Agreement.
(c) by Crown, if Global shall have breached or failed to perform in
any material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement, which breach or failure to perform (i)
would give rise to the failure of a condition set forth in Section 6.2(a) or
Section 6.2(b) and (ii) is incapable of being cured, or is not cured, by Global
within 30 calendar days following receipt of written notice of such breach or
failure to perform from Crown;
(d) by Crown, at any time prior to obtaining the Global Stockholder
Approval, within 10 days after a Global Adverse Recommendation Change;
(e) by Crown, at any time prior to obtaining the Crown Stockholder
Approval, to accept and enter into a binding agreement with respect to a Crown
Superior Proposal; provided that for the termination of this Agreement pursuant
to this subsection (e) to be effected, Crown shall have complied in all
material respects with the provisions of Section 5.6(b)(i), (ii) and (iii) and
Crown shall have paid the Crown Termination Fee (as defined in Section
7.2(c)(i));
(f) by Global, if Crown or Merger Sub shall have breached or failed to
perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform (i) would give rise to the failure of a condition set forth
in Section 6.3(a) or Section 6.3(b) and (ii) is incapable of being cured, or is
not cured, by Crown within 30 calendar days following receipt of written notice
of such breach or failure to perform from Global;
(g) by Global, at any time prior to obtaining the Crown Stockholder
Approval, within 10 days after a Crown Adverse Recommendation Change; or
(h) by Global, at any time prior to obtaining the Global Stockholder
Approval, to accept and enter into a binding agreement with respect to a Global
Superior Proposal; provided that for the termination of this Agreement pursuant
to this subsection (h) to be effected, Global shall have complied in all
material respects with the provisions of Section 5.6(a)(i), (ii) and (iii) and
Global shall have paid the Global Termination Fee (as defined in Section
7.2(d)(i)).
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Section 7.2 Effect of Termination.
(a) In the event of the termination of this Agreement by either Crown
or Global pursuant to Section 7.1 hereof, this Agreement shall forthwith be
terminated and have no further effect, the obligations of the parties hereunder
shall terminate, and there shall be no liability on the part of any party
hereto with respect thereto, except that (i) the provisions of Section 3.19,
Section 4.15, the last sentence of Sections 5.3(a) and 5.3(b), this Section
7.2, Section 7.3 and ARTICLE VIII shall survive the termination of this
Agreement and (ii) nothing herein shall relieve any party from liability or
damages for any willful breach hereof.
(b) Except as provided in this Section 7.2, all fees and expenses
incurred in connection with the Merger, this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such fees
or expenses, whether or not the Merger is consummated, except that each of
Global and Crown shall bear and pay one-half of the costs and expenses incurred
in connection with the filing, printing and mailing of the Registration
Statement and the Joint Proxy Statement (including SEC filing fees). The
Surviving Company shall file any return with respect to, and shall pay, any
state or local taxes imposed on Global (including any penalties or interest
with respect thereto), if any, which are attributable to the transfer of the
beneficial ownership of Global's real property (collectively, the "Real Estate
Transfer Taxes") as a result of the Merger.
(c) (i) In the event that: (x) (A) after the date of this
Agreement, a Crown Takeover Proposal shall have been made to Crown and
such Crown Takeover Proposal becomes publicly known prior to the Crown
Stockholders' Meeting or shall have been made directly to the
stockholders of Crown generally prior to the Crown Stockholders'
Meeting and, in either case, such Crown Takeover Proposal shall not
have been withdrawn at the time of the Crown Stockholders' Meeting,
(B) this Agreement is terminated by Crown or Global pursuant to
Section 7.1(b)(ii) and (C) within 12 months after such termination,
Crown enters into a definitive agreement to consummate a Crown
Takeover Proposal or consummates a Crown Takeover Proposal (solely for
purposes of this Section 7.2(c)(i)(x)(C), the term "Crown Takeover
Proposal" shall have the meaning set forth in the definition of Crown
Takeover Proposal contained in Section 5.6(b) except that all
references to "15%" shall be deemed references to "35%"); or (y) this
Agreement is terminated by Global pursuant to Section 7.1(g); or (z)
this Agreement is terminated by Crown pursuant to Section 7.1(e),
then, subject to Section 7.3, Crown shall pay Global a fee equal to
$139,000,000 (the "Crown Termination Fee") by wire transfer of
same-day funds promptly after receipt of notice from Global that the
Escrow Agreement (as defined in Section 7.3(a)) has been executed by
the parties thereto pursuant to Section 7.03(a) (which execution shall
occur as soon as practicable following the termination of this
Agreement, except that in the case of termination pursuant to clause
(x) above, such execution shall occur as soon as practicable following
the date of execution of such definitive agreement or, if earlier,
consummation of such transactions).
(ii) In the event that this Agreement is terminated by Global
pursuant to either (x) Section 7.1(f) or (y) Section 7.1(b)(ii) (and
no amount is payable by Crown pursuant to Section 7.2(c)(i)), then,
subject to Section 7.3, Crown shall pay Global a fee equal to Global's
out-of-pocket fees and expenses incurred in
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connection with the Merger, this Agreement and the transactions
contemplated hereby (the "Global Expenses"), but not in excess of
$10,000,000, by wire transfer of same-day funds promptly after receipt
of notice from Global that the Escrow Agreement has been executed by
the parties thereto pursuant to Section 7.3(a) (which execution shall
occur as soon as practicable following the termination of this
Agreement as referred to in this sentence); provided that the
foregoing shall not limit or be deemed to limit any liability of Crown
or damages or other remedy to which Global may be entitled as a result
of any willful breach of this Agreement by Crown. Crown will not be
obligated to make a payment pursuant to this Section 7.2(c)(ii) if
Crown has paid or is required to pay the Crown Termination Fee set
forth in Section 7.2(c)(i), and any fees paid by Crown under this
Section 7.2(c)(ii) will be credited against any such Crown Termination
Fee to the extent that such fee subsequently becomes payable by Crown.
(iii) Crown acknowledges that the agreements contained in
this Section 7.2(c) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements,
Global would not enter into this Agreement; accordingly, if Crown
fails promptly to pay the amount(s) due pursuant to this Section
7.2(c), and, to obtain such payment, Global commences a suit which
results in a judgment against Crown for the amount(s) due pursuant to
this Section 7.2(c), Crown shall pay to Global its out-of-pocket costs
and expenses (including attorneys' fees and expenses) in connection
with such suit, together with interest on such amount(s) at the prime
rate of Citibank, N.A. in effect on the date such payment was required
to be made.
(d) (i) In the event that: (x) (A) after the date of this
Agreement, a Global Takeover Proposal shall have been made to Global
and such Global Takeover Proposal becomes publicly known prior to the
Global Stockholders' Meeting or shall have been made directly to the
stockholders of Global generally prior to the Global Stockholders'
Meeting and, in either case, such Global Takeover Proposal shall not
have been withdrawn at the time of the Global Stockholders' Meeting,
(B) this Agreement is terminated by Crown or Global pursuant to
Section 7.1(b)(iii) and (C) within 12 months after such termination,
Global enters into a definitive agreement to consummate a Global
Takeover Proposal or consummates a Global Takeover Proposal (solely
for purposes of this Section 7.2(d)(i)(x)(C), the term "Global
Takeover Proposal" shall have the meaning set forth in the definition
of Global Takeover Proposal contained in Section 5.6(a) except that
all references to "15%" shall be deemed references to "35%"); or (y)
this Agreement is terminated by Crown pursuant to Section 7.1(d); or
(z) this Agreement is terminated by Global pursuant to Section 7.1(h),
then Global shall pay Crown a fee equal to $139,000,000 (the "Global
Termination Fee") by wire transfer of same-day funds on the date of
termination of this Agreement (except that in the case of termination
pursuant to clause (x) above, such payment shall be made on the date
of execution of such definitive agreement or, if earlier, consummation
of such transactions).
(ii) In the event that this Agreement is terminated by Crown
pursuant to either (x) Section 7.1(c) or (y) Section 7.1(b)(iii) (and
no amount is payable by Global pursuant to Section 7.2(d)(i)), then
Global shall pay Crown a fee equal to
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Crown's out-of-pocket fees and expenses incurred in connection with
the Merger, this Agreement and the transactions contemplated hereby
(the "Crown Expenses"), but not in excess of $10,000,000 by wire
transfer of same-day funds three (3) business days after the date of
such termination of this Agreement as referred to in this sentence;
provided that the foregoing shall not limit or be deemed to limit any
liability of Global or damages or other remedy to which Crown may be
entitled as a result of any willful breach of this Agreement by
Global. Global will not be obligated to make a payment pursuant to
this Section 7.2(d)(ii) if Global has paid or is required to pay the
Global Termination Fee set forth in Section 7.2(d)(i), and any fees
paid by Global under this Section 7.2(d)(ii) will be credited against
any such Global Termination Fee to the extent that such fee
subsequently becomes payable by Global.
(iii) Global acknowledges that the agreements contained in
this Section 7.2(d) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements,
Crown would not enter into this Agreement; accordingly, if Global
fails promptly to pay the amount(s) due pursuant to this (d), and, to
obtain such payment, Crown commences a suit which results in a
judgment against Global for the amount(s) due pursuant to this Section
7.2(d), Global shall pay to Crown its out-of-pocket costs and expenses
(including attorneys' fees and expenses) in connection with such suit,
together with interest on such amount(s) at the prime rate of
Citibank, N.A. in effect on the date such payment was required to be
made.
Section 7.3 Payments to Global.
(a) In the event that Crown is obligated to pay to Global the Crown
Termination Fee or the Global Expenses pursuant to Section 7.2(c)
(collectively, the "Break-Up Amount"), Crown shall deposit into escrow an
amount in cash equal to the Break-Up Amount with an escrow agent reasonably
selected by Global, after reasonable consultation with Crown, and pursuant to a
written escrow agreement (the "Escrow Agreement") reflecting the terms set
forth in this Section 7.3 and otherwise reasonably acceptable to each of Global
and the escrow agent. The payment or deposit into escrow of the Break-Up Amount
pursuant to this Section 7.3(a) shall be made by Crown promptly after receipt
of notice from Global that the Escrow Agreement has been executed by the
parties thereto.
(b) The Escrow Agreement shall provide that the Break-Up Amount in
escrow or the applicable portion thereof shall be released to Global on an
annual basis based upon the delivery by Global to the escrow agent of any one
or a combination of the following: (i) a letter from Global's independent
certified public accountants indicating the maximum amount that can be paid by
the escrow agent to Global without causing Global to fail to meet the
requirements of Sections 856(c)(2) and (3) of the Code for the applicable
taxable year of Global determined as if the payment of such amount did not
constitute income described in Sections 856(c)(2)(A)-(H) or 856(c)(3)(A)-(I) of
the Code (such income, "Qualifying Income"), in which case the escrow agent
shall release to Global such maximum amount stated in the accountant's letter,
or (ii) a letter from Global's counsel indicating that Global received a ruling
from the IRS holding that the receipt by Global of the Break-Up Amount would
either constitute Qualifying Income or would be excluded from gross income
within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively,
Global's outside counsel or accountant has rendered a legal opinion or a tax
opinion, respectively, to the effect that the receipt by Global of the Break-Up
Amount would either constitute Qualifying Income or
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would be excluded from gross income within the meaning of Sections 856(c)(2)
and (3) of the Code), in which case the escrow agent shall release to Global
the remainder of the Break-Up Amount. Crown agrees to cooperate in good faith
to amend this Section 7.3 at the reasonable request of Global in order to (x)
maximize the portion of the Break-Up Amount that may be distributed to Global
hereunder without causing Global to fail to meet the requirements of Sections
856(c)(2) and (3) of the Code, (y) improve Global's chances of securing a
favorable ruling described in this Section 7.3(b) or (z) assist Global in
obtaining a favorable legal opinion from its outside counsel or accountant as
described in this Section 7.3(b). The Escrow Agreement shall also provide that
Global shall bear all costs and expenses under the Escrow Agreement and that
any portion of the Break-Up Amount held in escrow for ten (10) years shall be
released by the escrow agent to Crown. Crown shall not be a party to the Escrow
Agreement and shall not bear any liability, cost or expense resulting directly
or indirectly from the Escrow Agreement (other than any Crown Taxes associated
with the release of funds to Crown from the escrow). Global shall fully
indemnify Crown and hold Crown harmless from and against any such liability,
cost or expense.
Section 7.4 Amendments. Subject to compliance with applicable Law,
this Agreement may be amended by the parties, by action taken or authorized by
their respective boards of directors, at any time before or after approval of
the matters presented in connection with the Merger by the stockholders of
Crown and Global; provided, however, that after any approval of the
transactions contemplated by this Agreement by the stockholders of Crown and
Global, there may not be, without further approval of such stockholders, any
amendment of this Agreement that changes the amount or the form of the
consideration to be delivered under this Agreement to the holders of Global
Common Stock, or which by applicable Law otherwise expressly requires the
further approval of such stockholders. No amendment shall be made to this
Agreement after the Effective Time. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties.
Section 7.5 Waiver. At any time prior to the Effective Time, whether
before or after the Global Stockholders' Meeting and the Crown Stockholders'
Meeting, any party hereto may (i) extend the time for the performance of any of
the covenants, obligations or other acts of any other party hereto or (ii)
subject to applicable Law, waive any inaccuracy of any representations or
warranties or compliance with any of the agreements, covenants or conditions of
any other party or with any conditions to its own obligations. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in an instrument in writing signed on behalf of such party by its
duly authorized officer. The failure of any party to this Agreement to assert
any of its rights under this Agreement or otherwise shall not constitute a
waiver of such rights. The waiver of any such right with respect to particular
facts and other circumstances shall not be deemed a waiver with respect to any
other facts and circumstances and each such right shall be deemed an ongoing
right that may be asserted at any time and from time to time.
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ARTICLE VIII
GENERAL PROVISIONS
------------------
Section 8.1 No Third Party Beneficiaries. Other than (a) the
provisions of Section 5.8 hereof, (b) after the Effective Time, (i) the rights
of Global's stockholders to receive the Merger Consideration at the Effective
Time (in accordance with the provisions of Section 2.1), (ii) the rights of the
holders of Global Restricted Shares to receive Converted Restricted Shares at
the Effective Time (in accordance with the provisions of Section 2.2(a)), (iii)
the rights of the holders of Global Deferred Shares to receive Converted
Deferred Shares at the Effective Time (in accordance with the provisions of
Section 2.2(b)), (iv) the rights of the holders of Global Options to receive
Converted Options (in accordance with the provisions of Section 2.3(a)) and (v)
the rights of the holders of Global Warrants to receive Converted Warrants (in
accordance with the provisions of Section 2.3(b)), and (c) the exclusive right
of Global, on behalf of its stockholders, to pursue damages in the event of
Crown's or Merger Sub's intentional breach of this Agreement or fraud, which
exclusive right is hereby acknowledged and agreed by Crown and Merger Sub,
nothing in this Agreement shall confer any rights or remedies upon any person
other than the parties hereto.
Section 8.2 Entire Agreement. This Agreement, together with the
Confidentiality Agreement, the Stockholders Agreement, the Support Agreements,
the Global Disclosure Letter and the Crown Disclosure Letter, constitutes the
entire Agreement among the parties with respect to the subject matter hereof
and supersedes any prior understandings, agreements or representations by or
among the parties, written or oral, with respect to the subject matter hereof.
No amendment, modification or alteration of the terms or provisions of this
Agreement, the Confidentiality Agreement, the Stockholders Agreement, the
Support Agreements, the Global Disclosure Letter or the Crown Disclosure Letter
shall be binding unless the same shall be in writing and duly executed by the
parties hereto.
Section 8.3 Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors. No party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the
other parties. Any purported assignment without such approval shall be void.
Section 8.4 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 8.5 Headings. The descriptive headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 8.6 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to principles of conflicts of laws. The parties hereto hereby
declare that it is their intention that this Agreement shall be regarded as
made under the laws of the State of Delaware and that the laws
73
of said State shall be applied in interpreting its provisions in all cases
where legal interpretation shall be required. Each of the parties hereto: (a)
agrees that this Agreement involves at least $100,000.00; (b) agrees that this
Agreement has been entered into by the parties hereto in express reliance upon
6 DEL. C. ss. 2708; (c) irrevocably and unconditionally submits to the
exclusive jurisdiction of the Court of Chancery of the State of Delaware with
respect to all actions and proceedings arising out of or relating to this
Agreement and the transactions contemplated hereby; (d) agrees that all claims
with respect to any such action or proceeding shall be heard and determined in
such court and agrees not to commence any action or proceeding relating to this
Agreement or the transactions contemplated hereby except in such court; (e)
irrevocably and unconditionally waives any objection to the laying of venue of
any action or proceeding arising out of this Agreement or the transactions
contemplated hereby and irrevocably and unconditionally waives the defense of
an inconvenient forum; and (f) agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
Section 8.7 Severability; Jurisdiction. Any term or provision of this
Agreement that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction declares that any term or
provision hereof is invalid or unenforceable, the parties agree that the court
making the determination of invalidity or unenforceability shall have the power
to reduce the scope, duration or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified after the
expiration of the time within which the judgment may be appealed.
Section 8.8 Specific Performance. Each of the parties acknowledges and
agrees that the other party would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the parties
agrees that the other party shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, in addition to any other remedy
to which it may be entitled, at law or in equity.
Section 8.9 Mutual Interest. Notwithstanding the fact that any part of
this Agreement has been drafted or prepared by or on behalf of one of the
parties hereto, all parties confirm that they and their respective counsel have
reviewed and negotiated this Agreement and that the parties hereto have adopted
this Agreement as the joint agreement and understanding of the parties, and the
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and the parties hereto waive the
application of any laws or rule or construction providing that ambiguities in
any agreement or other document will be construed against the party drafting
such agreement or other document and agree that no rule of construction
providing that a provision is to be interpreted in favor of the person who
74
contracted the obligation and against the person who stipulated it will be
applied against any party hereto.
Section 8.10 Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party. Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
Section 8.11 Non-Survival of Representations and Warranties and
Agreements. None of the representations, warranties, covenants and agreements
set forth in this Agreement or in any instrument delivered pursuant to this
Agreement, including any rights arising out of any breach of such
representations, warranties, covenants and agreements, will survive the
Effective Time, except for (i) Section 5.8, (ii) Section 5.18 (subject to the
exclusion of third-party beneficiary rights contained therein), (iii) those
other covenants and agreements contained in this Agreement that by their terms
apply or are to be performed in whole or in part after the Effective Time and
(iv) the provisions of this ARTICLE VIII.
Section 8.12 Certain Definitions.
(a) For purposes of this Agreement, the term "Affiliate" shall have
the same meaning as set forth in Rule 12b-2 promulgated under the Exchange Act,
and the term "person" shall mean any individual, corporation, partnership
(general or limited), limited liability company, limited liability partnership,
trust, joint venture, joint-stock company, syndicate, association, entity,
unincorporated organization or government or any political subdivision, agency
or instrumentality thereof.
(b) For purposes of this Agreement, the phrase "Material Adverse
Effect", when used in connection with Crown or Global (including the Surviving
Company as the successor to Global), means any change, effect, event,
occurrence, state of facts or development which individually or in the
aggregate (i) is reasonably expected to result in any change or effect that is
materially adverse to the business, financial condition, properties, assets,
liabilities (contingent or otherwise) or results of operations of such person
and its Subsidiaries, taken as a whole, or (ii) is reasonably expected to
prevent or materially impede, interfere with, hinder or delay the consummation
by Crown or Global, as applicable, of the Merger or the other transactions
contemplated by this Agreement; provided that none of the following shall be
deemed, either alone or in combination, to constitute, and none of the
following shall be taken into account in determining whether there has been or
will be, a Material Adverse Effect: (A) any change relating to the United
States or foreign economy or financial, credit or securities markets in
general, to the extent not having a disproportionate impact on Crown or Global,
as applicable, relative to their respective competitors, (B) any failure, in
and of its itself, by Crown or Global, as applicable, to meet any internal or
published projections, forecasts, or revenue or earnings predictions for any
period ending on or after the date of this Agreement (it being understood that
the facts or occurrences giving rise or contributing to such failure may be
deemed to constitute, or be taken into account in determining whether there has
been or will be, a Material Adverse Effect), (C) any adverse change, effect,
event, occurrence, state of facts or development reasonably attributable to
conditions affecting the industry in which Crown or
75
Global, as applicable, participates, to the extent not having a
disproportionate impact on Crown or Global, as applicable, relative to their
respective competitors, and (D) any outbreak or escalation of major hostilities
in which the United States is involved or any act of terrorism within the
United States or directed against its facilities or citizens wherever located,
to the extent not having a disproportionate impact on Crown or Global, as
applicable, relative to their respective competitors.
(c) For purposes of this Agreement, the phrases "to the knowledge of
Global", "known to Global", and similar formulations shall mean the knowledge
of the people set forth in Section 8.12(c) of the Global Disclosure Letter.
(d) For purposes of this Agreement, the phrases "to the knowledge of
Crown", "known to Crown", and similar formulations shall mean the knowledge of
the people set forth in Section 8.12(d) of the Crown Disclosure Letter.
Section 8.13 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person or overnight
courier to the respective parties at the following addresses, delivery by
telecopy or facsimile transmission to the respective parties at the following
numbers, or delivery by electronic mail transmission to the respective parties
at the following e-mail addresses, or at such other address, number or email
address for a party as shall be specified in a notice given in accordance with
this Section 8.13:
If to Crown or E. Xxxxx Xxxx, Esq.
Merger Sub: Crown Castle International Corp.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
with a copy to: Xxxx X. Xxxxx
(which shall not Crown Castle USA
be deemed notice) 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
and
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
xxxxxx@xxxxxxx.xxx
76
If to Global: Xxxxxxx X. Xxxxx, Esq.
Global Signal Inc.
000 X. Xxxxxxxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
E-mail: XXxxxx@XXxxxxx.xxx
with a copy to: Xxxxxx X. Coco, Esq.
(which shall not Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
be deemed notice) Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
E-mail: xxxxx@xxxxxxx.xxx
Section 8.14 Procedure for Termination, Amendment, Extension or
Waiver. A termination of this Agreement pursuant to Section 7.1, an amendment
of this Agreement pursuant to Section 7.4 or an extension or waiver pursuant to
Section 7.5 shall, to be effective, require, in the case of Global or Crown,
action by its board of directors or the duly authorized designee of its board
of directors.
Section 8.15 Waiver of Jury Trial. EACH OF GLOBAL, CROWN AND MERGER
SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF GLOBAL, CROWN
AND MERGER SUB IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
Section 8.16 Global Disclosure Letter and Crown Disclosure Letter.
Each of the Global Disclosure Letter and the Crown Disclosure Letter is
qualified in its entirety by reference to the specific provisions of this
Agreement and nothing in the Global Disclosure Letter or the Crown Disclosure
Letter is intended to broaden the scope of any representation or warranty
contained in this Agreement or to create any representation, warranty,
agreement or covenant on the part of Global of Crown. The inclusion of any
matter, information, item or other disclosure set forth in any section of the
Global Disclosure Letter or the Crown Disclosure Letter shall not be deemed to
constitute an admission of any liability of Global or Crown to any third party
or otherwise imply that such matter, information or item is material or creates
a measure for materiality for purposes of this Agreement, is required to be
disclosed under this Agreement, or has had or is reasonably expected to have a
Material Adverse Effect on Global, Crown or Merger Sub, as the case may be.
Certain matters disclosed in the Global Disclosure Letter and the Crown
Disclosure Letter are not material and/or have been disclosed for informational
purposes only.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Global Signal Inc., Crown Castle
International Corp. and CCGS Holdings LLC have each caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
GLOBAL SIGNAL INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: President & CEO
CROWN CASTLE INTERNATIONAL CORP.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: President & CEO
CCGS HOLDINGS LLC
By: Crown Castle International Corp., as
sole member
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: President & CEO
