EXHIBIT 99.3
EXECUTION COPY
DISPOSITION AGREEMENT (this "Agreement") dated as of the
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17th day of May, 2000, among CROWN CASTLE INTERNATIONAL CORP., a
Delaware corporation (the "Company"), CROWN CASTLE UK HOLDINGS
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LIMITED, a company incorporated under the laws of England and
Wales ("CCUK"), which was formerly known as Castle Transmission
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Services (Holdings) Ltd, FRANCE TELECOM S.A., a company
incorporated under the laws of France ("FT"), TELEDIFFUSION DE
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FRANCE INTERNATIONAL S.A. ("TDF"), a wholly owned indirect
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subsidiary of FT and a company incorporated in France, and
TRANSMISSION FUTURE NETWORKS B.V., a wholly owned indirect
subsidiary of FT and a company organized under the laws of the
Netherlands ("TFN"), and the FINANCIAL INSTITUTIONS (as defined
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herein) that have executed counterpart signature pages hereto.
W I T N E S S E T H :
WHEREAS TFN holds equity interests in the Company and CCUK, and FT
proposes to enter into the Letter of Undertakings (as defined below) providing
for the disposition of such equity interests; and
WHEREAS, to facilitate consummation of the disposition of such equity
interests and FT's compliance with the Letter of Undertakings, the Company,
CCUK, FT, TDF and TFN desire to enter into this Agreement.
NOW, THEREFORE, the Company, CCUK, FT, TDF and TFN, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
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ARTICLE I
Definitions
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SECTION 1.01. Certain Defined Terms; Interpretation. (a) As used in
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this Agreement, capitalized terms shall have the meanings assigned to such terms
as set forth below:
"Additional FT Shares" has the meaning specified in Section 3.03.
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"Affiliate" and "Associate", when used with reference to any person,
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have the respective meanings ascribed to such terms in Rule 12b-2 of the
Exchange Act, as in effect on the date of this Agreement.
A person shall be deemed the "beneficial owner" of, and shall be
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deemed to "beneficially own", and shall be deemed to have "beneficial ownership"
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of:
(i) any securities that such person or any of such person's Affiliates
or Associates is deemed to "beneficially own" within the meaning of Rule
13d-3 under the Exchange Act, as in effect on the date of this Agreement;
and
(ii) any securities (the "underlying securities") that such person or
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any of such person's Affiliates or Associates has the right to acquire
(whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or under standing (written or
oral), or upon the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise (it being understood that such person
shall also be deemed to be the beneficial owner of the securities
convertible into or exchangeable for the underlying securities).
"Business Day" means any day that is not a Saturday, a Sunday, a bank
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holiday or any other day on which commercial banking institutions in New York,
New York, Paris, France, or London, England, are not generally open for
business.
"By-laws" means the By-laws of the Company, as amended from time to
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time.
"CCUK Shares" means the ordinary shares of 1p each of CCUK.
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"CCUK Services Agreement" means the Amended and Restated Services
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Agreement dated August 1998 between CCUK and TDF, as amended.
"CCUK Shareholders Agreement" means the Shareholders Agreement dated
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August 1998 among the Company, CCUK and TDF, as amended.
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"CCUK Warrants" means warrants to purchase CCUK Shares.
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"Charter" means the certificate of incorporation of the Company, as
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amended from time to time.
"Class A Stock" means the Company's Class A Common Stock, $0.01 par
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value per share.
"Commission" means the Securities and Exchange Commission, or any
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other U.S. agency at the time administering the Securities Act and the Exchange
Act.
"Common Stock" means shares of the Company's common stock, par value
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$0.01 per share.
"Contract" has the meaning set forth in Section 2.01(a).
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"Equity Security" means any security which is an ordinary share, a
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preferred share or a common share or is classified as an equity security under
U.S. generally accepted accounting principles, or any securities convertible or
exchangeable for any such equity security.
"Equity Swap Agreements" has the meaning set forth in Section 4.01(b).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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or any similar U.S. securities statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Exchange Agreement" means the Share Exchange Agreement dated as of
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April 24, 1998, among the Company, CCUK, TDF, and TFN.
"Final Disposition Date" means the second anniversary of the
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Separation Date, or if the Registration Period has been extended pursuant to
Section 1.09 of Annex I hereto, the Registration Termination Date.
"Financial Institution" means any financial institution, including any
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trust, limited liability company or other entity formed for purposes of the
transactions
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contemplated by the Equity Swap Agreements and wholly owned and exclusively
controlled by such financial institution, reasonably acceptable to the Company.
"FT Credit Event" means (i) the cessation of activity by FT or the
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commencement of a voluntary winding-up procedure or any other equivalent
procedure in respect of FT; (ii) subject to applicable law, the commencement of
rehabilitation proceedings or any equivalent proceedings relating to FT; or
(iii) the commencement of liquidation proceedings or any other equivalent
proceedings affecting FT.
"FT Group" means FT and its Affiliates (other than the Company and its
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subsidiaries).
"FT Interest" means all Equity Securities of the Company or CCUK
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beneficially owned by a member of the FT Group.
"Governance Agreement" means the Governance Agreement dated as of
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August 21, 1998, among the Company, CCUK, TDF, and TFN, as supplemented as of
May 17, 1999.
"Governmental Entity" has the meaning set forth in Section 2.01(a).
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"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
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1976.
"Law" has the meaning set forth in Section 2.01(a).
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"Letter of Undertakings" means the letter agreement published on May
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10, 2000 between FT and the United Kingdom Secretary of State for Trade and
Industry regarding the disposition of the FT Interest.
"Lien" has the meaning set forth in Section 2.01(a).
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"Offering Expenses" has the meaning specified in Section 1.05 of Annex
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I hereto.
"Order" has the meaning set forth in Section 2.01(a).
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"person" means an individual, corporation, limited liability company,
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partnership, joint venture, trust or
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unincorporated organization, or a government or any agency or political
subdivision thereof.
"Permitted Transferee" with respect to any Financial Institution means
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one or more financial institutions (including any trust, limited liability
company or other entity formed for purposes of such transfer and wholly owned
and exclusively controlled by one or more of such financial institutions)
reasonably acceptable to the Company to whom such Financial Institution
transfers its Residual Shares in connection with an equity swap or similar
transaction.
"Primary Shares" has the meaning set forth in Section 3.03.
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"Registered Offering" has the meaning set forth in Section 3.01.
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"Registration Period" means (i) any period prior to the first
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anniversary of the Separation Date during which the Financial Institutions have
the right to Transfer the Residual Shares pursuant to the last sentence of
Section 4.02(b) and (ii) the period beginning on the first anniversary of the
Separation Date and ending on the Final Disposition Date.
"Registration Termination Date" has the meaning set forth in Section
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1.09 of Annex I hereto.
"Required Disposition Notice" has the meaning set forth in Section
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4.02(d).
"Residual Share Sale" has the meaning set forth in Section 4.01(a).
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"Residual Shares" has the meaning set forth in Section 4.01(a).
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"Restricted Shares" means each Residual Share held by a Financial
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Institution or a Permitted Transferee until the earlier of (i) the date on which
such Residual Share has been effectively registered under the Securities Act and
disposed of in accordance with the terms of this Agreement, (ii) the date on
which such Residual Share is distributed to the public pursuant to Rule 144
under the Securities Act or (iii) the date of any other disposition of such
Residual Share by such Financial Institution (other than to a controlled
Affiliate of such Financial Institution that
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becomes a party to this Agreement or a Permitted Transferee of such Financial
Institution).
"Rules" has the meaning set forth in Section 8.09(b).
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"Securities Act" means the Securities Act of 1933, as amended, or any
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similar U.S. securities statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Separation Date" means the earlier of (x) the date on which the
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closing of the Registered Offering occurs and (y) July 31, 2000 or, if any of
the managing underwriters for the Registered Offering indicate that market
conditions are such that completion of the Registered Offering prior to such
date is inadvisable, October 31, 2000.
"Stockholders Agreement" means the Stockholders Agreement, dated as of
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August 21, 1998, among the Company, TDF and the other stockholders of the
Company named in Schedule I thereto, as amended.
"Threshold Number" means that number of shares of Common Stock to be
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sold by FT in the Registered Offering the disposition of which would result in
the FT Group having a maximum beneficial interest in the Company of less than
10% on a fully diluted basis, including the assumed conversion of all Equity
Securities of the Company and CCUK held by or issuable to the FT Group into
shares of Common Stock (without taking into account any Primary Shares proposed
to be sold by the Company in the Registered Offering or the conversion of any
Equity Securities of the Company and CCUK held by any other person).
"Transfer" has the meaning set forth in Section 4.02(b).
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"Transfer Agreement" has the meaning set forth in Section 4.02(b).
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(b) Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
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ARTICLE II
Representations, Warranties and Covenants
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SECTION 2.01. Representations, Warranties and Covenants of FT, TDF and
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TFN. FT, TDF and TFN hereby jointly and severally represent, warrant and
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covenant to the Company, CCUK and the Financial Institutions as follows:
(a) Authority. Each of FT, TDF and TFN has all requisite power and
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authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by FT, TDF and TFN. This Agreement has
been duly executed and delivered by FT, TDF and TFN and constitutes a valid
and binding obligation of FT, TDF and TFN enforceable against FT, TDF and
TFN in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws relating to or affecting creditor's rights generally from time
to time in effect and to general principles of equity (including concepts
of materiality, reasonableness, good faith and fair dealing), regardless of
whether considered in a proceeding in equity or at law. Other than filings
required under applicable securities laws, under the HSR Act, if
applicable, and the consent of the United Kingdom Office of Fair Trading,
neither the execution, delivery or performance of this Agreement by FT, TDF
or TFN nor the consummation by FT, TDF or TFN of the transactions
contemplated hereby will (i) require any filing with, or permit,
authorization, consent or approval of, any U.S., state or local government
or any court, tribunal, administrative agency or commission or other
governmental or regulatory authority or agency, domestic, foreign or
supranational (a "Governmental Entity"), (ii) result in a violation or
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breach of, or constitute (with or without due notice or lapse of time or
both) a default under, or give rise to any right of termination, amendment,
cancelation or acceleration under, or result in the creation of any pledge,
claim, lien, charge, encumbrance or security interest of any kind or nature
whatsoever (a "Lien") upon any of the properties or assets of FT, TDF or
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TFN under, any of the terms, conditions or provisions of any material note,
bond, mortgage, indenture, lease, contract, agreement or
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other instrument or obligation (a "Contract") to which FT, TDF or TFN is a
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party or by which FT, TDF or TFN or any of FT's, TDF's or TFN's properties
or assets, including the FT Interest, may be bound the result of which
would have a material adverse effect on the business, operations or
financial condition of the FT Group taken as a whole or the ability of any
member of the FT Group to fulfill its obligations under, or consummate the
transactions contemplated by, this Agreement or (iii) violate any judgment,
order, writ, preliminary or permanent injunction or decree (an "Order") or
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any statute, law, ordinance, rule or regulation of any Governmental Entity
(a "Law") applicable to FT, TDF or TFN or any of FT's, TDF's or TFN's
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properties or assets, including the FT Interest, the violation of which
would have a material adverse effect on the business, operations or
financial condition of the FT Group taken as a whole or the ability of any
member of the FT Group to fulfill its obligations under, or consummate the
transactions contemplated by, this Agreement.
(b) The FT Interest. The FT Interest consists of 13,872,396 shares
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of Common Stock, 11,340,000 shares of Class A Common Stock, 2,163,000,000
CCUK Shares and CCUK Warrants to purchase 257,500,000 CCUK Shares. The FT
Interest and the certificates representing such FT Interest are now and at
all times after the date of this Agreement and prior to the Separation Date
will be held by TFN or another member of the FT Group, or by a nominee or
custodian for its benefit, and TFN or another member of the FT Group has
good title to such FT Interest, free and clear of any Liens, proxies,
voting trusts or agreements, except for any such Liens or proxies arising
under the Charter, the By-laws, the CCUK Shareholders Agreement, the
Stockholders Agreement, the Governance Agreement, the Exchange Agreement or
this Agreement. No member of the FT Group owns of record or beneficially
any Equity Securities of the Company or CCUK other than the FT Interest.
(c) No Contrary Agreements. FT, TDF and TFN shall not, except as
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contemplated by Article IV or Section 5.01, (i) sell, transfer, pledge,
assign or otherwise dispose of, or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) or understanding
with respect to the sale, transfer, pledge, assignment or other disposition
of, the FT Interest to any person other
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than the Company or the Company's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-
attorney or otherwise, with respect to all or any portion of the FT
Interest or (iii) take any other action that would in any way restrict,
limit or interfere with the performance of their respective obligations
hereunder or the transactions contemplated hereby.
(d) Stop Transfer. Each of FT, TDF and TFN agrees with, and
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covenants to, the Company that the Company and CCUK shall not register the
transfer of any certificate representing any portion of the FT Interest
unless such transfer is made in accordance with Article III, Article IV or
Section 5.01. Each of FT, TDF and TFN authorizes any applicable depositary
or securities custodian for the Equity Securities of the Company or CCUK to
restrict transfer other than in accordance with Article III, Article IV or
Section 5.01 of FT's, TDF's or TFN's beneficial interests in any global
security that represents any portion of the FT Interest.
SECTION 2.02. Representations and Warranties of the Company and CCUK.
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The Company and CCUK hereby jointly and severally represent and warrant to FT,
TDF, TFN and the Financial Institutions as follows:
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(a) Authority. Each of the Company and CCUK has all requisite power
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and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by the Company and CCUK. This Agreement
has been duly executed and delivered by the Company and CCUK and
constitutes a valid and binding obligation of the Company and CCUK
enforceable against the Company and CCUK in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws relating to or affecting
creditor's rights generally from time to time in effect and to general
principles of equity (including concepts of materiality, reasonableness,
good faith and fair dealing), regardless of whether considered in a
proceeding in equity or at law. Other than filings required under
applicable securities laws and under the HSR Act, if applicable, neither
the execution, delivery or performance of this Agreement by the Company and
CCUK nor the consummation by the Company and CCUK of the transactions
contemplated hereby will (i) require any filing with, or permit,
authorization, consent or approval of, any Governmental Entity, (ii) result
in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default under, or give rise to any right of
termination, amendment, cancelation or acceleration under, or result in the
creation of any Lien upon any of the properties or assets of the Company or
CCUK under, any of the terms, conditions or provisions of any Contract to
which the Company or CCUK is a party or by which the Company or CCUK or any
of the Company's or CCUK's properties or assets may be bound the result of
which would have a material adverse effect on the business, operations or
financial condition of the Company and CCUK taken as a whole or the ability
of the Company or CCUK to fulfill its obligations under, or consummate the
transactions contemplated by, this Agreement or (iii) violate any Order or
Law applicable to the Company or CCUK or any of the Company's or CCUK's
properties or assets the violation of which would have a material adverse
effect on the business, operations or financial condition of the Company
and CCUK taken as a whole or the ability of the Company or CCUK to fulfill
its obligations under, or consummate the transactions contemplated by, this
Agreement.
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SECTION 2.03. Representations and Warranties of the Financial
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Institutions. Each Financial Institution hereby severally and not jointly
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represents and warrants to the Company, CCUK, FT, TDF and TFN as follows:
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(a) Authority. Such Financial Institution has all requisite power
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and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by such Financial Institution. This
Agreement has been duly executed and delivered by such Financial
Institution and constitutes a valid and binding obligation of such
Financial Institution enforceable against such Financial Institution in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
relating to or affecting creditor's rights generally from time to time in
effect and to general principles of equity (including concepts of
materiality, reasonableness, good faith and fair dealing), regardless of
whether considered in a proceeding in equity or at law. Other than filings
required in connection with the registration of securities contemplated
hereby, other filings required under applicable securities laws and filings
under the HSR Act, if applicable, neither the execution, delivery or
performance of this Agreement by such Financial Institution nor the
consummation by such Financial Institution of the transactions contemplated
hereby will (i) require any filing with, or permit, authorization, consent
or approval of, any Governmental Entity, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or
both) a default under, or give rise to any right of termination, amendment,
cancelation or acceleration under, or result in the creation of any Lien
upon any of the properties or assets of such Financial Institution under,
any of the terms, conditions or provisions of any Contract to which such
Financial Institution is a party or by which such Financial Institution or
any of such Financial Institution's properties or assets may be bound the
result of which would have a material adverse effect on the business,
operations or financial condition of such Financial Institution or the
ability of such Financial Institution to fulfill its obligations under, or
consummate the transactions contemplated by, this Agreement or (iii)
violate any Order or Law applicable to such Financial Institution or any of
such Financial Institution's properties or assets the violation of which
would have a material adverse effect on the
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business, operations or financial condition of such Financial Institution
or the ability of such Financial Institution to fulfill its obligations
under, or consummate the transactions contemplated by, this Agreement.
ARTICLE III
Registered Public Offering
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SECTION 3.01. Registered Offering. Promptly following the execution
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and delivery of this Agreement by each of the parties hereto (other than the
Financial Institutions) and the Letter of Undertakings by each of the parties
thereto, the Company shall file a registration statement under the Securities
Act contemplating a registered public offering of, and FT and the Company
thereafter promptly shall commence a registered public offering (the "Registered
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Offering") pursuant to which FT will offer, on an underwritten basis, no fewer
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than the Threshold Number of shares of Common Stock. Prior to the filing of
such registration statement, FT will cause, and the Company and CCUK will
facilitate, the conversion or exchange of such portion of the FT Interest into
shares of Common Stock as is necessary to permit FT to consummate the Registered
Offering as contemplated by this Agreement. If prior to the commencement of the
"road show" for the Registered Offering, developments occur in connection with a
proposed private placement, strategic sale or other disposition of all or a
portion of the FT Interest that could reasonably be expected to require
amendment or supplementation of the registration statement pursuant to which the
Registered Offering is being made, then FT may elect to delay the commencement
of such "road show". No such election shall affect any other provision of this
Agreement or extend any time period set forth herein.
SECTION 3.02. Selection of Managing Underwriters. FT shall designate
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one investment banking firm reasonably acceptable to the Company, and the
Company shall designate one investment banking firm reasonably acceptable to FT,
to serve as joint book-running managing underwriters of the Registered Offering.
Each other underwriter that participates in the Registered Offering shall be
reasonably acceptable to each of FT and the Company.
SECTION 3.03. Inclusion of Primary Shares and Additional FT Shares;
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Priority Rights. If and to the extent
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that the managing underwriters shall be of the opinion that such inclusion would
not adversely affect the marketing of the Threshold Number of shares of Common
Stock to be sold by FT, the Company may elect to register for sale by the
Company up to 3.5 million shares of Common Stock or a quantity of securities of
the Company convertible into up to 3.5 million shares of Common Stock (the
"Primary Shares"), plus such number of additional shares of Common Stock or
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other securities as may be required to satisfy the Company's obligations
pursuant to any overallotment option as described below, on the registration
statement for the Registered Offering. If and to the extent that the managing
underwriters shall be of the opinion that such inclusion would not adversely
affect the marketing of the Threshold Number of shares of Common Stock to be
sold by FT and the Primary Shares to be sold by the Company, FT may elect to
register for sale by FT additional shares (the "Additional FT Shares") of Common
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Stock on the registration statement for the Registered Offering. If the managing
underwriters determine during the marketing process or in connection with the
pricing of the Registered Offering that it would be advisable to reduce the
number of shares of Common Stock offered for sale, such reduction shall be made
as follows: First, by reducing the number of Additional FT Shares; and second,
by reducing the number of Primary Shares. Any shares of Common Stock or other
securities sold pursuant to an overallotment option shall be allocated to the
Company until the Company has sold shares of Common Stock (or securities
convertible into a number of shares of Common Stock) equal to 7.0 million in the
aggregate and thereafter shall be allocated pro rata between the Company and FT
based on the number of such shares (or shares issuable upon conversion of any
convertible securities), as applicable, sold by each. The Company shall use
reasonable efforts to obtain any consents from holders of Equity Securities of
the Company that have registration rights as of the date of this Agreement
necessary to permit the consummation of the Registered Offering.
SECTION 3.04. Registration Procedures. The Registered Offering shall
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be treated as a registration of Restricted Shares requested pursuant to Section
1.02 or Section 1.03 of Annex I hereto and, except as set forth in this Article
III, the registration procedures set forth in Section 1.04 of Annex I hereto
shall govern the Registered Offering; provided, however, that the Registered
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Offering shall not reduce the number of requests for registration that may be
made by holders of Restricted Shares pursuant to Section 1.02 or Section 1.03 of
Annex I hereto.
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SECTION 3.05 Concurrent Offerings. Prior to the earlier of the
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Separation Date and the termination of this Agreement, except for (i) offerings
made pursuant to registration statements on Forms X-0, X-0 or any successor
thereto and (ii) offerings made pursuant to demand by holders of Equity
Securities of the Company who are entitled to the benefits of a Contract entered
into prior to the date hereof providing for the registration of securities of
the Company, the Company will not conduct or facilitate any offerings of its
Equity Securities, whether for its own account or that of other stockholders.
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ARTICLE IV
Sale of Residual Shares; Obligations Following
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Residual Share Sale
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SECTION 4.01. Sale of Residual Shares. (a) No later than one
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Business Day after the earlier of (x) the closing of the Registered Offering and
(y) October 31, 2000, (i) FT shall, if it does not elect to sell the FT Interest
as then constituted to one or more Financial Institutions, exercise or surrender
to the Company all CCUK Warrants and convert or exchange all CCUK Shares and all
shares of Class A Stock beneficially owned by the FT Group into or for shares of
Common Stock, including the CCUK Ordinary Share contemplated to be retained by
TDF pursuant to the Governance Agreement, or, if FT elects to sell the FT
Interest as then constituted to one or more Financial Institutions, each
Financial Institution shall exercise or surrender to the Company all CCUK
Warrants and convert or exchange all CCUK Shares and all shares of Class A Stock
it purchases pursuant to clause (ii) below, and (ii) FT shall, subject to the
conditions set forth herein, sell (the "Residual Share Sale") either (A) all
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shares of Common Stock beneficially owned by any member of the FT Group after
giving effect to the Registered Offering (such shares, including any shares of
Common Stock issued to a Financial Institution on exercise or surrender to the
Company of any CCUK Warrants and conversion or exchange of any CCUK Shares and
any shares of Class A Stock purchased by such Financial Institution, the
"Residual Shares") or (B) the FT Interest as then constituted to one or more
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Financial Institutions; provided, however, that FT may retain a number of
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Residual Shares sufficient to satisfy any obligation it may have pursuant to
Section 3.03 to sell shares of Common Stock pursuant to an overallotment option
until the closing of such overallotment option or, if the overallotment option
has not been exercised, the expiration date of such overallotment option. The
price of the Residual Share Sale shall be determined by FT and the Financial
Institutions. In the event the closing of the Registered Offering has not
occurred on or prior to October 31, 2000, FT may sell the Residual Shares no
later than one Business Day after October 31, 2000 pursuant to Section 5.01
instead of selling the Residual Shares to one or more Financial Institutions
pursuant to clause (ii) of this Section 4.01(a).
(b) The Company and FT agree that, in connection with the Residual
Share Sale, FT or its Affiliates may enter into one or more arrangements
(together with the agreement
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governing the Residual Share Sale and any related agreements, the "Equity Swap
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Agreements") with any of the Financial Institutions providing for FT's economic
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participation in any gain or loss realized by such Financial Institution in
respect of any disposition by such Financial Institution of the Residual Shares;
provided, however that no member of the FT Group shall retain or obtain any
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right to vote or influence the voting of the Residual Shares following the
Separation Date. Any provision of an Equity Swap Agreement permitting any member
of the FT Group to approve of, or otherwise influence the timing of, the
disposition of the Residual Shares by any Financial Institution may not extend
beyond the Final Disposition Date. The Equity Swap Agreements shall not be
inconsistent with this Agreement.
SECTION 4.02. Obligations of Financial Institutions. (a) FT shall
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cause each Financial Institution in connection with, and as a condition of, the
Residual Share Sale to such Financial Institution, to enter into a written
counterpart to this Agreement (the form of which is set forth as Exhibit A
hereto) satisfactory in all respects to the Company and CCUK whereby such
Financial Institution shall agree to be bound by the terms of this Agreement
specified in such counterpart. In no event shall any Financial Institution have
any obligation under this Agreement unless and until it has executed a
counterpart to this Agreement.
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(b) Transfer Restrictions. Prior to the first anniversary of the
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Separation Date, each member of the FT Group and each Financial Institution
shall not, without the prior written consent of the Company, sell, transfer,
pledge, assign or otherwise dispose of ("Transfer") any Residual Shares, or
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enter into any Contract, option or other arrangement (including any profit
sharing arrangement other than the Equity Swap Agreements) or understanding with
respect to the sale, transfer, pledge, assignment or other disposition of any
Residual Shares (a "Transfer Agreement") or enter into a transaction (other than
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the Equity Swap Agreements) which would have the same effect, including any
swap, hedge or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Residual Shares, whether such
transaction is to be settled by delivery of the Residual Shares, in cash or
otherwise, in each case except for the Residual Share Sale and except to any
controlled Affiliate of such Financial Institution that becomes a party to this
Agreement or to any Permitted Transferee of such Financial Institution. Each
Financial Institution that Transfers Residual Shares to a Permitted Transferee
shall obtain the agreement of such Permitted Transferee to comply with the
obligations of such Financial Institution with respect to such Residual Shares
under this Agreement and shall cause the Company to be made a third party
beneficiary of such agreement. No transfer by a Financial Institution pursuant
to this Section 4.02(b) shall relieve such Financial Institution of its
obligations under this Agreement if the transferee does not perform such
obligations. Notwithstanding the foregoing, after 90 days have elapsed from the
Separation Date, the Financial Institutions shall have the right to Transfer the
Residual Shares and enter into a Transfer Agreement, if an FT Credit Event has
occurred and is continuing.
(c) Voting. Following the Separation Date, whenever a member of the
-------
FT Group or a Financial Institution shall have the right to vote any Residual
Shares such party hereby directs its proxy appointed below to (i) be present, in
person or represented by proxy, at any stockholder meeting of the Company for
the purpose of determining the presence of a quorum at such meeting or for any
action by written consent, and (ii) vote or cause to be voted all such party's
Residual Shares in the same proportion as the votes cast by or on behalf of the
other holders of Common Stock, including any other securities of the Company
voting with the Common Stock as a class. Each member of the FT Group and each
Financial Institution hereby irrevocably grants to, and appoints, E. Xxxxx Xxxx,
Executive Vice President and
19
General Counsel of the Company, and Xxxxxx X. Xxxx, Associate General Counsel of
the Company, in their respective capacities as officers of the Company, and any
such individuals who shall hereafter succeed to any such office of the Company,
and each of them individually, as such party's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of such party,
to vote such party's Residual Shares, or grant a consent or approval in respect
of such Residual Shares, in each case in accordance with this Section 4.02(c).
(d) Company Right to Require Disposition. If a Financial Institution
-------------------------------------
has not disposed of its Residual Shares prior to the Final Disposition Date, the
Company may require such Financial Institution to dispose of the Residual Shares
by delivering a written notice (the "Required Disposition Notice") to such
---------------------------
Financial Institution invoking the right set forth in this Section 4.02(d).
Each such Financial Institution shall use reasonable efforts to dispose of the
Residual Shares within 90 Business Days after receipt of the Required
Disposition Notice.
(e) Failure to Comply with Required Disposition. If one or more
--------------------------------------------
Financial Institutions has not disposed of its Residual Shares within 90
Business Days after receipt of the Required Disposition Notice, the Company
shall have the right in its sole discretion to appoint a nationally recognized
investment banking firm (selected after consultation with FT and such Financial
Institutions) to conduct a sale of the Residual Shares held directly or
indirectly by such Financial Institutions. The sale will be consummated as
promptly as practicable in a manner and on such terms as are determined by such
investment banking firm. All Offering Expenses incurred in connection with a
sale pursuant to this paragraph shall be shared on a pro rata basis by the
selling Financial Institutions. Each member of the FT Group and each selling
Financial Institution will use all reasonable efforts to take or cause to be
taken all action and to do or cause to be done all things necessary, proper or
advisable to consummate the sale contemplated by this Section 4.02(e). At the
closing of the sale contemplated by this Section 4.02(e), each selling Financial
Institution shall deliver certificates evidencing the Residual Shares held
directly or indirectly by such Financial Institution, duly endorsed, or
accompanied by duly executed instruments of transfer, free and clear of any
Liens, against delivery of such Financial Institution's share of the net sale
proceeds.
20
(f) Stop Transfer. Each Financial Institution shall agree with, and
--------------
covenant to, the Company that the Company shall not register the transfer of any
certificate representing any portion of the Residual Shares unless such transfer
is made in accordance with the terms of this Agreement. Each Financial
Institution shall authorize any applicable depositary or securities custodian
for the Common Stock to restrict transfer otherwise than in accordance with this
Agreement of such Financial Institution's beneficial interests in any global
security that represents such Residual Shares.
(g) Legends. The parties hereto acknowledge and agree that, on or
--------
after the Separation Date, the Company shall, against surrender by a member of
the FT Group or a Financial Institution of certificates representing the
Residual Shares (including certificates representing CCUK Warrants, CCUK Shares
or shares of Class A Stock being surrendered pursuant to Section 4.01(a)), issue
new certificates to such party representing the Common Stock surrendered or
issued upon conversion, exercise or exchange of CCUK Warrants, CCUK Shares or
shares of Class A Stock with one or both of the following legends, as
applicable:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN A DISPOSITION AGREEMENT, DATED AS
OF THE 17TH DAY OF MAY, 2000, AS IT MAY BE AMENDED FROM TIME TO TIME, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
NO REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF
THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED
WITH."
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF TRANSFER
OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS SUCH
TRANSFER IS MADE IN CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR IN A TRANSACTION EXEMPT FROM OR NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF SUCH ACT."
In the event that a Financial Institution requests that either or both legends
set forth in this Section 4.02(g) be removed, the Company shall, upon the
written request of such Financial Institution, issue to such Financial
Institution a new certificate evidencing such Residual Shares without either or
both of the legends, as applicable, required by
21
this Section 4.02(g) endorsed thereon; provided, however, that such Financial
-------- -------
Institution shall furnish or cause to be furnished to the Company and its
transfer agent such legal opinions (which may be rendered by internal or
external counsel to such Financial Institution) as the Company and its transfer
agent may reasonably require to confirm that such legend is not required on such
certificate.
SECTION 4.03. FT Standstill. Following the Separation Date, other
--------------
than pursuant to the Equity Swap Agreements, no member of the FT Group shall (i)
acquire, offer to acquire, or agree to acquire, by purchase, gift or otherwise,
the beneficial ownership of any Residual Shares or (ii) enter into a transaction
which would have the same effect, including any swap, hedge or other arrangement
that results in the acquisition of any of the economic consequences of ownership
of any of the Residual Shares of the Company or CCUK, whether such transaction
is to be settled by delivery of the Residual Shares, in cash or otherwise.
ARTICLE V
Alternative Dispositions
------------------------
22
SECTION 5.01. Alternative Dispositions. FT may continue to entertain
-------------------------
any other opportunities to and, if they so elect, may sell all or part of the FT
Interest in private placements, strategic sales or otherwise, in each case in
coordination with the Company and in compliance with all existing agreements
with respect to the FT Interest; provided, however, that, following the
-------- -------
commencement of the "roadshow" for the Registered Offering, FT shall not (i)
other than as disclosed in the registration statement for the Registered
Offering, reduce the number of shares of Common Stock to be offered in the
Registered Offering to an amount below the Threshold Amount, as calculated on
such date, or (ii) take any action with respect to any such other opportunities
that could reasonably be expected in the determination of counsel to the Company
to require amendment or supplementation of the registration statement pursuant
to which the Registered Offering is being made. If, as a result of any such
alternative disposition, the Registered Offering shall be terminated, all
Offering Expenses incurred prior to the date of such termination shall be borne
by FT and the Company in proportion to the number of shares of Common Stock that
would have been sold by each (or the number of shares of Common Stock into which
the securities to be sold would have been convertible) had the Registered
Offering been consummated.
SECTION 5.02. Exchange or Conversion. The Company shall use its best
-----------------------
efforts to facilitate any conversion or exchange of CCUK Shares and Class A
Common Shares beneficially owned by the FT Group or the Financial Institutions
into or for shares of Common Stock and the exercise of the CCUK Warrants
beneficially owned by the FT Group or the Financial Institutions into CCUK
Shares as may be necessary for the purpose of carrying out the terms of this
Agreement; any such conversion, exchange or exercise by the Financial
Institutions shall be on the same terms as though made by a member of the FT
Group.
23
ARTICLE VI
Termination of Existing Agreements
----------------------------------
SECTION 6.01. Termination of Existing Agreements. The Company, CCUK,
-----------------------------------
FT, TDF and TFN hereby agree that, effective as of the Separation Date, all
rights and obligations of each of the Company, CCUK and the members of the FT
Group under the CCUK Services Agreement, the CCUK Shareholders Agreement, the
Governance Agreement, the Stockholders Agreement and the Exchange Agreement
shall automatically and irrevocably terminate, in each case other than
obligations of the Company or CCUK owed to persons other than members of the FT
Group, and that they shall enter into such amendments to such agreements as are
necessary to memorialize the foregoing, provided that any provisions of such
agreements regarding conversion and exchange of ownership interests remain
effective until such conversion or exchange (whether by a member of the FT Group
or a Financial Institution) is completed and any Financial Institution holding
all or a portion of the FT Interest shall have the benefit of such provisions
prior to such conversion or exchange.
SECTION 6.02. Waiver of Rights. Each of FT, TDF and TFN, on behalf
-----------------
of itself and each other member of the FT Group, hereby irrevocably waives,
effective as of the Separation Date, any rights it may otherwise retain under
the Charter or By-Laws and hereby consents to any amendment to the Charter or
By-Laws to eliminate reference to any such rights.
ARTICLE VII
Registration of Residual Shares
-------------------------------
SECTION 7.01. Registration of Residual Shares. At such time as a
--------------------------------
Financial Institution enters into a counterpart to this Agreement as
contemplated by Section 4.02(a), the holders of Restricted Shares shall be
entitled to the registration provisions set forth in Annex I hereto, the terms
of which are hereby incorporated herein and made a part of this Agreement.
SECTION 7.02. Priority of Agreements. The registration rights set
-----------------------
forth herein shall supersede any existing registration rights in respect of the
shares of Common Stock to be included in the Registered Offering to
24
which any member of the FT Group may be a beneficiary, including pursuant to the
Stockholders Agreement, and each of FT, TDF and TFN, on behalf of itself and
each other member of the FT Group, hereby irrevocably waives all such rights
unless and until this Agreement is terminated in accordance with its terms.
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. Reasonable Efforts; Further Actions. The parties
------------------------------------
hereto each will use all reasonable efforts to take or cause to be taken all
action and to do or cause to be done all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement.
SECTION 8.02. Consents. The parties hereto will cooperate with each
---------
other in filing any necessary applica tions, reports or other documents with,
giving any notices to, and seeking any consents from, all regulatory bodies and
all governmental agencies and authorities and all third parties as may be
required in connection with the consum mation of the transactions contemplated
by this Agreement.
SECTION 8.03. Amendment and Waiver. This Agreement may not be
---------------------
amended, supplemented or discharged, and no provision hereof may be modified,
except expressly by an instrument in writing signed by the parties hereto. Any
term or provision of this Agreement may be waived, but only in writing by the
party which is entitled to the benefit thereof. No waiver of any provision
hereof by any party shall constitute a waiver thereof by any other party nor
shall any such waiver constitute a continuing waiver of any matter by such
party.
SECTION 8.04. Counterparts. This Agreement may be executed in one or
-------------
more counterparts, each of which shall be deemed an original but which together
shall constitute but one instrument. It shall not be necessary for each party
to sign each counterpart so long as every party has signed at least one
counterpart.
25
SECTION 8.05. Notices. All notices, requests, demands, waivers and
--------
other communications required or permitted to be given under this Agreement
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified mail,
postage prepaid, return receipt requested; or (d) overnight delivery service.
Notices shall be sent to the appropriate party at its address or facsimile
number given below (or at such other address or facsimile number for such party
as shall be specified by notice given hereunder):
If to the Company: Crown Castle International Corp.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: General Counsel
with a copy to: Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to the France Telecom
FT Group: 0, xxxxx x'Xxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Fax: 00 0 00 00 00 00
Attn: Xxxx Xxxxxxx
with a copy to: Xxxxx & Overy
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxxx X. XxXxxxxxxx, Esq.
if to a holder of
Restricted Shares: To the address set forth
in the counterpart pursuant
to which such holder becomes
a party to this Agreement.
All such notices, requests, demands, waivers and communi cations shall be
deemed received upon (i) actual receipt thereof by the addressee, (ii) actual
delivery thereof to the appropriate address or (iii) in the case of a facsimile
transmission, upon transmission thereof by the sender and issuance by the
26
transmitting machine of a confirmation slip that the number of pages
constituting the notice have been transmitted without error. In the case of
notices sent by facsimile transmission, the sender shall contemporaneously mail
a copy of the notice to the addressee at the address provided for above.
However, such mailing shall in no way alter the time at which the facsimile
notice is deemed to be received or the validity of such facsimile notice.
SECTION 8.06. Binding Effect; Assignment. This Agreement and all of the
---------------------------
provisions hereof shall be binding upon and shall inure to the benefit of the
parties and their respective successors and permitted assigns; provided,
--------
however, that the provisions hereof shall not be binding upon and shall not
-------
inure to the benefit of any Financial Institution unless and until it has
executed a counterpart to this Agreement. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, directly or
indirectly, including by operation of law, by any party hereto, except as
provided in Section 7.01.
SECTION 8.07. Entire Agreement. This Agreement constitutes the entire
-----------------
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties or any of them with respect to the subject matter hereof.
SECTION 8.08. Expenses. Except as otherwise set forth herein, each of the
---------
parties hereto shall pay its own costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby, including the fees and
expenses of counsel, irrespective of when incurred.
SECTION 8.09. Applicable Law and Jurisdiction; Service of Process. (a) This
----------------------------------------------------
Agreement shall be construed in accordance with and governed by the law of the
State of New York, regardless of the laws that might otherwise apply under
applicable principles of conflicts of laws thereof.
(b) Any controversy, dispute or claim arising out of, in connection with, or in
relation to the interpretation, performance or breach of this Agreement or
otherwise arising out of the execution hereof, including any claim based on
contract, tort or statute, shall be determined, at the request of any party, by
arbitration conducted in New York, New York, before and in accordance with the
then-existing Rules for commercial Arbitration of the American Arbitration
Association (the "Rules"), and any judgment or award
-----
27
rendered by the arbitrator shall be final, binding and unappealable. Any state
or federal court having jurisdiction may enter a judgment, or issue an
injunction or other equitable relief, on such award. Each of the parties hereby
irrevocably and unconditionally submits, for itself and its property, to the
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, for purposes of entering such
judgment or issuing such injunction or other equitable relief. The pre-trial
discovery procedures of the Federal Rules of Civil Procedure shall apply to any
arbitration hereunder. Any controversy concerning whether a dispute is an
arbitrable dispute or as to the interpretation or enforceability of this
paragraph shall be determined by the arbitrator. The arbitrator shall be a
neutral arbitrator who has expertise in the subject matter(s) of the dispute.
The parties intend that the provisions to arbitrate set forth herein be valid,
enforceable and irrevocable. The designation of the situs or a governing law for
this Agreement or the arbitration shall not be deemed an election to preclude
application of the Federal Arbitration Act, if it would be applicable. In the
arbitrator's award the arbitrator shall allocate, in such arbitrator's
discretion, among the parties to the arbitration all costs of the arbitration,
including the fees and expenses of the arbitrator and reasonable attorneys'
fees, costs and expert witness expenses of the parties.
The parties agree to comply with any award made in any such arbitration
proceedings that has become final in accordance with the Rules and agree to the
entry of a judgment in any jurisdiction upon any award rendered in such
proceedings becoming final under the Rules. The arbitrator shall be entitled,
if appropriate, to award any remedy in such proceedings permitted in a civil
proceeding under the laws of the State of New York including, if appropriate,
monetary damages, specific performance and all other forms of legal and
equitable relief.
SECTION 8.10. Article and Section Headings. The article, section and other
-----------------------------
headings contained in this Agreement and the exhibits and annexes hereto are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement. When a reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated.
28
SECTION 8.11. Specific Enforcement. The parties hereto acknowledge and agree
---------------------
that irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached for which money damages would not be an adequate remedy. It
is accordingly agreed that, notwithstanding Section 8.09, so long as permitted
by applicable law, the parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof without the necessity of proving
the inadequacy of money damages as a remedy.
SECTION 8.12. Severability. Should any provision of this Agreement for any
-------------
reason be declared invalid or unenforceable, such decision shall not affect the
validity or enforceability of any of the other provisions of this Agreement,
which remaining provisions shall remain in full force and effect and the
application of such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall be valid and enforced to the fullest extent permitted by law.
SECTION 8.13. Publicity. Except as otherwise required by any applicable law,
----------
court process or the rules of a national securities exchange or the Nasdaq
National Market, for so long as this Agreement is in effect, none of any member
of the FT Group, the Financial Institutions, the Company or CCUK shall issue or
cause the publication of any press release or other public announcement with
respect to the transactions contemplated by this Agreement without the consent
of each other party to this Agreement, which consent shall not be unreasonably
withheld.
IN WITNESS WHEREOF, each party hereto has executed this Agreement as of the day
and year first above written.
CROWN CASTLE INTERNATIONAL CORP.,
by /s/ E. Xxxxx Xxxx
--------------------------------------
Name: E. Xxxxx Xxxx
Title: Executive Vice President
CROWN CASTLE UK HOLDINGS LIMITED,
by /s/ E. Xxxxx Xxxx
--------------------------------------
Name: E. Xxxxx Xxxx
Title: Executive Vice President
FRANCE TELECOM S.A.,
by /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
TELEDIFFUSION DE FRANCE INTERNATIONAL S.A.,
by /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
TRANSMISSION FUTURE NETWORKS B.V.
by /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Exhibit A
[Form of Counterpart Signature Page]
The undersigned hereby agrees to be bound, severally and not jointly with any
other Financial Institution, effective as of such time as this Counterpart
Signature Page is executed, as a "Financial Institution" to the preamble, the
recitals, Article I, Section 2.03, Section 4.01, Section 4.02, Article VII,
Article VIII and Annex I (the "Financial Institution Provisions") of the
--------------------------------
Disposition Agreement dated as of May 17, 2000, among CROWN CASTLE INTERNATIONAL
CORP., a Delaware corporation, CROWN CASTLE UK HOLDINGS LIMITED, a company
incorporated under the laws of England and Wales, which was formerly known as
Castle Transmission Services (Holdings) Ltd, FRANCE TELECOM S.A., a company
incorporated under the laws of France ("FT"), TELEDIFFUSION DE FRANCE
--
INTERNATIONAL S.A., a wholly owned indirect subsidiary of FT and a company
incorporated in France, and TRANSMISSION FUTURE NETWORKS B.V., a wholly owned
indirect subsidiary of FT and a company organized under the laws of the
Netherlands, with the rights of a Financial Institution party set forth therein.
______________________________
(Financial Institution)
Dated:_____________ By:___________________________
(signature)
______________________________
(name and title)
______________________________
(city/state/zip code)
______________________________
(phone)
______________________________
(facsimile)
2
Acknowledged as of the date set forth above:
CROWN CASTLE INTERNATIONAL CORP.,
by______________________________
Name:
Title:
FRANCE TELECOM, S.A.,
by______________________________
Name:
Title:
Annex I
Registration Provisions
-----------------------
SECTION 1.01. "Piggy-Back" Registration. If the Company proposes to register
--------------------------
any of its securities under the Securities Act for sale to the public at any
time during the Registration Period, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Forms X-0, X-0 or another form not available for registering the
Restricted Shares for sale to the public), each such time it will give written
notice to all holders of outstanding Restricted Shares of its intention so to
do. Upon the written request of any such holder, received by the Company within
20 days after the giving of any such notice by the Company, to register any of
its Restricted Shares, the Company will, subject as provided below, cause the
Restricted Shares as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder of such Restricted Shares so registered. In the
event that any registration pursuant to this Section 1.01 shall be, in whole or
in part, an underwritten public offering of Equity Securities of the Company,
the number of securities to be included in such an underwriting may be reduced
if and to the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the securities to be sold
therein as follows: first, all persons (other than the Company, the requesting
holders of Restricted Shares and requesting holders of Equity Securities of the
Company who are entitled to the benefits of a Contract entered into prior to the
date hereof providing for the registration of Equity Securities of the Company)
who have requested shares to be registered shall be reduced in the manner
provided by the Company. In the event that the number of shares requested to be
registered after such reduction shall still be in excess of the number of shares
recommended to be registered by the underwriters, then the number of shares
shall be further reduced pro rata among the requesting holders of Restricted
Shares according to the number of shares requested by each such holder to be
registered. In the event the number of shares requested to be registered after
such reduction shall still be in excess of the number of shares recommended to
be registered by the underwriters then the number of shares shall be reduced
among the requesting holders of Equity Securities of the Company who are
entitled to the benefits of a Contract entered into prior to the date hereof
2
providing for the registration of Equity Securities of the Company in accordance
with the applicable Contracts relating to such holders' registration rights.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 1.01 without thereby
incurring any liability to the holders of Restricted Shares. There shall be no
limit to the number of registrations of Restricted Shares which may be effected
under this Section 1.01.
SECTION 1.02. Demand Registration. (a) At any time during the Registration
--------------------
Period, the holders of Restricted Shares may request the Company to register
under the Securities Act all or a portion of the Restricted Shares held by them
for sale in the manner specified in such notice; provided, that the reasonably
--------
anticipated aggregate net proceeds to the sellers from such public offering
would exceed (A) $30 million at any time when such Restricted Shares could not
be sold pursuant to Rule 144(k) under the Securities Act or (B) $50 million at
any time when such Restricted Shares could be sold pursuant to Rule 144(k) under
the Securities Act. Notwithstanding anything to the contrary contained herein,
no request may be made under this Section 1.02 within 90 days after the
effective date of a registration statement filed by the Company covering a firm
commitment underwritten public offering in which the holders of Restricted
Shares shall have been entitled to join pursuant to Sections 1.01 or 1.03 and in
which there shall have been effectively registered all Restricted Shares as to
which registration shall have been requested.
(b) Following receipt of any notice under Section 1.02(a), the Company shall
notify all holders of Restricted Shares from whom such notice has not been
received and shall use its best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified in such
notice from requesting holders, the number of Restricted Shares specified in
such notice (and in all notices received by the Company from other holders
within 20 days after the giving of such notice by the Company). If such method
of disposition shall be an underwritten public offering, the holders of a
majority of the Restricted Shares to be sold in such offering may designate the
managing underwriter of such offering, subject to the approval of the Company,
which approval shall not be unreasonably withheld or delayed. The Company shall
be obligated to register Restricted Shares pursuant to Section 1.02(a) on one
occasion only and pursuant to Section 1.02(b), subject to Section 1.03(b), on
one occasion only, provided, however,
-------- -------
3
that such obligations shall be deemed satisfied only when a registration
statement covering all Restricted Shares specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto unless (i) any such registration statement
does not become effective due to the withdrawal thereof by or on the request of
the holders of 66-2/3% of the Restricted Shares to be registered or (ii) the
reason all Restricted Shares specified in notices pursuant to this Section 1.02
are not registered is due to a limitation on the registration of shares by the
managing underwriter (which limitation shall be applied pro rata) and no more
than 50% of the Restricted Shares so specified are not registered as a result of
the limitation imposed by such managing underwriter or the voluntary withdrawal
of any such shares from registration by the holder thereof.
(c) The Company shall be entitled to include in any registration statement
referred to in this Section 1.02, for sale in accordance with the method of
disposition specified by the requesting holders, Common Stock to be sold by the
Company for its own account, except as and to the extent that, in the opinion of
the managing underwriter (if such method of disposition shall be an underwritten
public offering), such inclusion would adversely affect the marketing of the
Restricted Shares to be sold.
SECTION 1.03. Registration on Form S-3. (a) If at any time during the
-------------------------
Registration Period (i) a holder or holders of a majority of the Restricted
Shares request that the Company file a registration statement on Form S-3 or any
successor thereto for a public offering of all or any portion of the Restricted
Shares held by such requesting holder or holders, the reasonably anticipated
aggregate price to the public of which would exceed (A) $30 million at any time
when such Restricted Shares could not be sold pursuant to Rule 144(k) under the
Securities Act or (B) $50 million at any time when such Restricted Shares could
be sold pursuant to Rule 144(k) under the Securities Act, and (ii) the Company
is a registrant entitled to use Form S-3 or any successor thereto to register
such shares, then the Company shall use its best efforts to register under the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with the method of disposition specified in such notice, the number
of Restricted Shares specified in such notice. Whenever the Company is required
by this Section 1.03 to use
4
its best efforts to effect the registration of Restricted Shares, each of the
procedures and requirements of Section 1.02 and 1.04 shall apply to such
registration; provided, however, that, subject to Section 1.03(b), the Company
-------- -------
shall not be required to effect more than one registration on Form S-3 which may
be requested and obtained under this Section 1.03.
(b) If the Company shall have effected a demand registration pursuant to Section
1.02, it shall not be required to effect a registration on Form S-3 pursuant to
Section 1.03, and if the Company shall have effected a registration on Form S-3
pursuant to Section 1.03, it shall not be required to effect a demand
registration pursuant to Section 1.02.
SECTION 1.04. Registration Procedures. If and whenever the Company is required
------------------------
by the provisions of Sections 1.01, 1.02 or 1.03 to use its best efforts to
effect the registration of any Restricted Shares under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such securities;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (i) below and
comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Shares covered by such registration statement
in accordance with the sellers' intended method of disposition set forth in
such registration statement for such period;
(c) furnish to each seller of Restricted Shares and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or
other disposition of the Restricted Shares covered by such registration
statement;
(d) use its best efforts to register or qualify the Restricted Shares
covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Restricted Shares or, in the
case of an underwritten public offering, the managing underwriter
reasonably shall request; provided, however, that the Company shall not for
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any such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
5
(e) use its best efforts to list the Restricted Shares covered by
such registration statement with any securities exchange or market on which
the Common Stock, if applicable, is then listed or quoted;
(f) immediately notify each seller of Restricted Shares and each
underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(g) at the request of any seller of Restricted Shares, use its best
efforts to furnish on the date that Restricted Shares are delivered to the
underwriters for sale or otherwise first sold pursuant to such
registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the
underwriters and such seller, stating that such registration statement has
become effective under the Securities Act and that (A) to the best
knowledge of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act and (B)
to such other effects as are customary for such opinions in light of the
nature of the offering and such seller as may be reasonably requested by
the underwriters, such seller or their respective counsel and (ii) a letter
dated such date from the independent public accountants retained by the
Company, addressed to the underwriters and such seller stating that they
are independent public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements of
the Company included in the registration statement or the prospectus, or
any amendment or supplement thereto, comply as to form in all material
respects with the applicable accounting requirements of the Securities Act,
and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business
days prior to the date of such letter) with respect to such registration as
such underwriters or such seller reasonably may request;
(h) (i) make available for inspection by each seller of Restricted
Shares, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, (ii) cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller,
6
underwriter, attorney, accountant or agent in connection with such
registration statement and (iii) provide each seller and its counsel with
the opportunity to participate in the preparation of such registration
statement; provided, however, that the foregoing inspection, information
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gathering and participation shall be conducted by one underwriter, one
counsel and one accounting firm, in each case designated by the holders of
a majority of the Restricted Shares included on such Registration
Statement;
(i) with respect to any registration statement pursuant to which
Restricted Shares are to be sold pursuant to Sections 1.01, 1.02 or 1.03,
the Company shall use its best efforts to cause such registration statement
to become and remain effective for 180 days; and
(j) enter into such agreements and take such other actions as the
sellers of Restricted Shares and the underwriters reasonably request in
order to expedite or facilitate the disposition of such Restricted Shares,
including preparing for and participating in such number of "road shows",
and all such other customary selling efforts, as the underwriters
reasonably request in order to expedite or facilitate such disposition.
In connection with each registration hereunder, the sellers of Restricted Shares
will furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as shall be reasonably
necessary in order to ensure compliance with Federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 1.01, 1.02 or 1.03
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature (it being
understood that the Company will not require a selling stockholder to make any
representation, warranty or agreement in such agreement other than with respect
to such stockholder, the ownership of such stockholder's securities being
registered and such stockholder's intended method of disposition). The
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of the underwriters in such written agreement
with the underwriters shall also be made to and for the benefit of the selling
stockholders. In the event that any condition to the obligations under any such
written
7
agreement with the underwriters are not met or waived, and such failure to be
met or waived is not attributable to the fault of the selling stockholders
requesting a demand registration pursuant to Sections 1.02 and 1.03, such
request for registration shall not be deemed exercised for purposes of
determining whether such registration has been effected for purposes of Section
1.02 or 1.03.
SECTION 1.05. Expenses. All expenses incurred by the Company in complying with
---------
Sections 1.01, 1.02 or 1.03, including all printing expenses, fees and
disbursements of counsel and independent public accountants for the Company,
fees and expenses (including counsel fees) incurred in connection with complying
with state securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, costs of insurance, fees and disbursements of counsel for the
sellers of Restricted Shares and all underwriting discounts and selling
commissions applicable to the sale of Restricted Shares are called "Offering
--------
Expenses".
--------
All Offering Expenses in connection with each registration statement under
Sections 1.01, 1.02 or 1.03 shall be borne by the participating sellers in
proportion to the number of shares of Common Stock sold by each (or the number
of shares of Common Stock into which the securities sold are convertible), or by
such participating sellers other than the Company (except to the extent the
Company shall be a seller) as they may agree. All registration fees and
National Association of Securities Dealers, Inc. filing fees in connection with
each registration statement under Section 1.01, 1.02 or 1.03 shall be borne by
the Company.
SECTION 1.06. Indemnification and Contribution. (a) In the event of a
---------------------------------
registration of any of the Restricted Shares under the Securities Act pursuant
to Sections 1.01, 1.02 or 1.03, the Company will indemnify and hold harmless
each seller of such Restricted Shares thereunder, each underwriter of such
Restricted Shares thereunder and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
8
statement under which such Restricted Shares were registered under the
Securities Act pursuant to Sections 1.01, 1.02 or 1.03, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished in writing by such seller, such
underwriter or such controlling person specifically for use in such registration
statement or prospectus.
(b) In the event of a registration of any of the Restricted Shares under the
Securities Act pursuant to Sections 1.01, 1.02 or 1.03, each seller of such
Restricted Shares thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Shares
were registered under the Securities Act pursuant to Sections 1.01, 1.02, or
1.03, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
9
damage, liability or action; provided, however, that such seller will be liable
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hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus; and
provided further, however, that the liability of each seller hereunder shall be
-------- ------- -------
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the proceeds received by such seller from the sale of Restricted Shares covered
by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 1.06 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 1.06 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 1.06 for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both the
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indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to
10
those available to the indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint liability
under the Securities Act in any case in which either (i) any indemnified party
exercising rights under this Agreement, or any controlling person of any such
holder, makes a claim for indemnification pursuant to this Section 1.06 but it
is judicially determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or the denial of
the last right of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 1.06 provides for
indemnification in such case, (ii) contribution under the Securities Act may be
required on the part of any such selling holder or any such controlling person
in circumstances for which indemnification is provided under this Section 1.06,
or (iii) the indemnification provided for by this Section 1.06 is insufficient
to hold harmless an indemnified party, other than by reason of the exceptions
provided therein; then, and in each such case, the Company and such holder will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) (x) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other or (y) if the allocation provided by
clause (x) above is not permitted by applicable law, or provides a lesser sum to
the indemnified party than the amount hereinafter calculated, in such proportion
as is appropriate to reflect not only the relative fault referred to in clause
(x) above but also the relative benefits received by the indemnifying party and
the indemnified party from the offering of the securities (taking into account
the portion of the proceeds of the offering received by each such party) as well
as the statements or omissions which resulted in such losses, claims, damages or
liabilities and any other relevant equitable considerations. No person will be
required to contribute any amount in excess of the proceeds received by such
person in respect of all such Restricted Shares offered and sold by it pursuant
to such registration
11
statement and no person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
SECTION 1.07. Changes in Common Stock; Successors. (a) If, and as often as,
------------------------------------
there is any change in the Common Stock by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Common Stock as so
changed.
(b) If the Company consolidates with, or merges into or with, another person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or a
majority of its assets to any person or group, or any person or group
consolidates with, or merges into or with, the Company, each holder of
Restricted Shares shall, as a condition to the relevant transaction involving
such person, group or successor in business, be granted by such person, group or
successor in business, equivalent rights to the rights granted in this
Agreement.
SECTION 1.08. Rule 144 Reporting. With a view to making available the benefits
-------------------
of certain rules and regulations of the Commission which may at any time permit
the sale of Restricted Shares to the public without registration, the Company
shall:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Shares forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as
such holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing such holder to sell any Restricted
Shares without registration.
12
SECTION 1.09. Suspension of Registration Obligations; "Clear Market"
------------------------------------------------------
Conditions. (a) Notwithstanding the provisions of Section 1.04(a), (i) the
-----------
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective (A) may be suspended on
one occasion for a period not to exceed 90 days if there exists at the time
material nonpublic information relating to the Company which, in the reasonable
opinion of the Company, should not be disclosed and (B) shall not apply for the
period which begins seven days prior to and ends 90 days after the commencement
of a public offering of the Common Stock, so long as the Company has fulfilled
its notice obligations under Sections 1.01, 1.02 or 1.03 with respect to such
offering and (ii) if a public offering of the Common Stock has been previously
commenced, neither the Company nor any controlling person of the Company shall
commence another public offering of the Common Stock until 90 days after the
commencement of such prior offering. If the Company's obligation to file a
registration statement, or cause such registration statement to become and
remain effective, is suspended at any time during the 90 days immediately
preceding the second anniversary of the Separation Date, then the Registration
Period shall be extended until the date (the "Registration Termination Date")
-----------------------------
that occurs a number of days after the second anniversary of the Separation Date
(or, if later, the date on which such obligation is no longer suspended) equal
to the number of days during such 90 day period that such obligation is
suspended.
(b) Except for (i) registration statements on Forms X-0, X-0 or any successor
thereto and (ii) registration statements, prospectuses and prospectus
supplements filed following a demand by holders of Equity Securities of the
Company who are entitled to the benefits of a Contract entered into prior to the
date hereof providing for the registration of Equity Securities of the Company,
the Company will not file with the Commission any other registration statement,
or file a prospectus or prospectus supplement with respect to an existing
"shelf" registration statement, in each case with respect to its Equity
Securities, whether for its own account or that of other stockholders, from the
date of receipt of either (A) the notice from requesting holders contemplated by
Section 1.02 or (B) a notice from requesting holders (which may be delivered at
or following the time such holders deliver the notice requesting filing of a
registration statement pursuant to Section 1.03) that such holders intend
promptly to commence an offering pursuant to a registration statement filed
pursuant to Section 1.03,
13
to until 90 days after the commencement of the public offering of the Restricted
Shares covered by the registration statement requested pursuant to Section 1.02
or Section 1.03; provided, however, that the Company shall not be required to
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refrain from filing any other registration statement for a period prior to the
commencement of such public offering that would exceed 90 days.
SECTION 1.10. Transferability of Registration Rights. Registration rights
---------------------------------------
conferred herein shall only inure to the benefit of holders of Restricted Shares
that become a party to the Agreement to which this Annex I is annexed pursuant
to Section 4.02(b) of such Agreement and their Permitted Transferees.
SECTION 1.11. Other Registration Rights. The Company shall not grant to any
--------------------------
third party any registration rights inconsistent with any of those contained
herein or that would permit a beneficiary of such rights to demand registration
of Equity Securities of the Company prior to the Company's satisfying any prior
or concurrent demand to register Restricted Shares, so long as any of the
registration rights under this Agreement remains in effect.
