EXHIBIT 2.4
SHARE EXCHANGE AGREEMENT (this "Agreement"), dated as of
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April 24, 1998, among CASTLE TRANSMISSION SERVICES (HOLDINGS)
LTD, a company organized under the laws of England and Wales
("CTSH"), CROWN CASTLE INTERNATIONAL CORP. (formerly named Castle
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Tower Holding Corp.), a Delaware corporation (the "Company"),
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TELEDIFFUSION DE FRANCE INTERNATIONAL S.A. and a company
incorporated in France ("TDF"), DIGITAL FUTURE INVESTMENTS B.V.,
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a wholly owned indirect subsidiary of TeleDiffusion de France
S.A., and a company organized under the laws of the Netherlands
("DFI (BV)"), and the SHAREHOLDERS of CTSH (other than the
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Company, TDF and DFI (BV)) named in Schedule I hereto (the "CTSH
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Shareholders").
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W I T N E S S E T H :
WHEREAS the CTSH Shareholders and DFI (BV) desire to effect the
exchange of the respective number of CTSH Shares (as defined) set forth opposite
DFI (BV)'s name and each such CTSH Shareholder's name on Schedule I hereto for
shares of Common Stock (as defined) of the Company, in the case of each such
CTSH Shareholder, or shares of Class A Stock (as defined) of the Company, in the
case of DFI (BV) (collectively, the "Company Shares");
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WHEREAS, in exchange for such CTSH Shares, the Company desires to
issue to the CTSH Shareholders and DFI (BV) Company Shares in accordance with
the terms of this Agreement (the "Exchange");
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WHEREAS, subject to the terms of the Candover-Berkshire Agreement (as
defined), DFI (BV) is the beneficial owner of the beneficial ownership interest
held in the DFI (BV) Purchased Shares (as defined) by each of the other parties
to the Candover-Berkshire Agreement (other than the Company, TDF and CTSH)
immediately prior to their purchase by DFI (BV), DFI (BV) desires to effect the
exchange of such DFI (BV) Purchased Shares for Company Shares; and
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WHEREAS, in exchange for such DFI (BV) Purchased Shares, the Company
desires to issue to DFI (BV), Company Shares in accordance with the terms of
this Agreement; and
WHEREAS, the parties intend that, for United States Federal income tax
purposes, the Exchange qualify as a reorganization pursuant to Section
368(a)(1)(B) of the United States Internal Revenue Code of 1986, as amended (the
"Code").
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NOW, THEREFORE, in consideration of the promises and the respective
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Certain Definitions.
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"Affiliate" and "Associate", when used with reference to any person,
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shall 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.
"Applicable Law" shall have the meaning given to such term in Section
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5.03 hereof.
"Amended and Restated By-laws" shall mean the amended and restated by-
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laws of the Company in form and substance satisfactory to TDF and each CTSH
Shareholder, which will take effect immediately prior to the Closing.
"Amended and Restated Charter" shall mean the amended and restated
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certificate of incorporation of the Company in form and substance satisfactory
to TDF and each CTSH Shareholder, which will take effect immediately prior to
the Closing.
"Balance Sheet" shall have the meaning given to such term in Section
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6.09 hereof.
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
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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 understanding (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).
"By-laws" shall mean the By-laws of the Company as in effect on the
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date hereof.
"Candover-Berkshire Agreement" shall mean the agreement dated April
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24, 1998 among the Company, Berkshire Fund IV, LP, Berkshire Investors LLC,
Berkshire Partners LLC, Candover Investments PLC, Candover (Trustees) Limited,
Candover Partners Limited, Candover Partners Limited, Candover Partners Limited,
Candover Partners Limited, TDF, DFI (BV) and CTSH, a copy of which is attached
as Exhibit B to this Agreement.
"CCIC Group" shall mean the Company and each of its Subsidiaries
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(other than CTSH and each of its Subsidiaries).
"Charter" shall mean the certificate of incorporation of the Company
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as in effect on the date hereof.
"Class A Stock" shall mean the Company's Class A Stock, $.01 par value
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per share, as designated in the Amended and Restated Charter.
"Closing" shall have the meaning given to such term in Article IV
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hereof.
"Closing Date" shall have the meaning given to such term in Article IV
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hereof.
"Code" shall have the meaning set forth in the recitals hereof.
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"Common Stock" shall mean shares of the Company's common stock, par
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value $.01 per share, as designated in the Amended and Restated Charter.
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"Company's Knowledge" shall mean (and any similar reference herein to
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the knowledge, awareness or belief of the Company shall be deemed to include an
additional statement) that the Company knows, is aware of or believes such
matter or circumstances, after having made all reasonable inquiries in the
circumstances of the appropriate management of any member of the CCIC Group.
"Company SEC Documents" shall have the meaning given to such term in
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Section 6.18.
"Company Shares" shall have the meaning set forth in the recitals to
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this Agreement.
"Consent" shall mean any consent, approval, license, permit, order or
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authorization of, or registration, declaration or filing with, any Governmental
Entity.
"Converting Stockholder" shall mean each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.,
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▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Centennial Fund IV, L.P., Centennial Fund
V, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Centennial Entrepreneurs Fund V, L.P., Berkshire Fund
III, A Limited Partnership, Berkshire Investors LLC, Berkshire Fund IV, Limited
Partnership, Nassau Capital Partners II, L.P., NAS Partners I LLC, PNC Venture
Corp. and ▇▇▇, Richwhite Communications Limited.
"CTI" shall mean Castle Transmission International Limited.
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"CTSH Group" shall mean CTSH and its Subsidiaries.
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"CTSH Non-Accredited Shareholders" shall mean ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
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▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
"CTSH Ordinary Shares" shall mean the ordinary shares of 1p each of
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CTSH.
"CTSH Preference Shares" shall mean the redeemable preference shares
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of 1p each of CTSH.
"CTSH Shareholders Agreement" shall mean the Shareholders Agreement to
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be entered into among the Company, CTSH and TDF, an agreed form of which is
attached as Exhibit D to this Agreement.
"CTSH Shares" shall mean the CTSH Ordinary Shares and CTSH Preference
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Shares.
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"CTSH Warrants" shall mean the warrants dated February 28, 1997,
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entitling TDF to subscribe for 257,000 CTSH Ordinary Shares and 257,242,500 CTSH
Preference Shares and the Company to subscribe for 515,000 CTSH Ordinary Shares
and 514,485,000 CTSH Preference Shares.
"DFI (BV) Purchased Shares" shall mean the CTSH Shares subject to the
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Candover-Berkshire Agreement.
"Environmental Laws" shall mean all applicable laws, regulations,
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ordinances, orders, judgments or decrees, entered, promulgated or issued in
final form by any Governmental Authority, relating to protection of the
environment or exposure to, or the use, management, release or disposal of,
Hazardous Materials.
"Exchange" shall have the meaning set forth in the recitals to this
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Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and the rules and regulations promulgated by the SEC thereunder, all as
the same shall be in effect at the time.
"Exchange Ratio" shall mean in the case of each CTSH Shareholder, 1.4
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shares of Common Stock, and in the case of DFI (BV) and TDF, 1.4 shares of Class
A Stock, for 1 CTSH Ordinary Share, 1p per share, together with 999 CTSH
Preference Shares, 1p per share, as adjusted pursuant to Section 1.02.
"Existing CCIC Agreements" shall mean the Original CCIC Stockholders
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Agreement, the Charter, the By-laws, the CTSH Warrants, the Agreement dated
February 2, 1998 between the Company, TEA and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ relating to the
redemption of all Company Shares held by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (including the shares
gifted to The National Christian Charitable Foundation, Inc.) and the Indenture
dated November 25, 1997 relating to the 10 5/8% Senior Discount Notes Due 2007.
"Existing CCIC Shares" shall mean all of the shares of capital stock
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of the Company as of the date of this Agreement.
"Existing Class A Stock" shall mean the Company's Class A Stock, $.01
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par value per share, as designated in the Charter.
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"Existing Class B Stock" shall mean the Company's Class B Stock, $.01
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par value per share, as designated in the Charter.
"Existing CTSH Agreements" shall mean (a) the Shareholders' Agreement,
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dated January 23, 1997, among Berkshire Fund IV Investment Corp.; Berkshire
Investors LLC; Berkshire Partners LLC; Candover Investments PLC; Candover
(Trustees) Limited; Candover Partners Limited; Castle Tower Holding Corporation,
TeleDiffusion de France International S.A.; and Diohold Limited; (b) the
Subscription Agreement, dated January 23, 1997, among ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.; ▇▇▇▇▇
▇. ▇▇▇; Berkshire Fund IV Investment Corp.; Berkshire Investors LLC; Candover
Investments PLC; Candover (Trustees) Limited; Candover Partners Limited; Castle
Tower Holding Corporation; and Diohold Limited; and (c) the Articles of
Association of CTSH.
"Existing TDF Shares" shall mean the CTSH Shares beneficially owned by
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TDF as of the date of this Agreement.
"FAA" shall mean the United States Federal Aviation Administration.
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"FCC" shall mean the United States Federal Communications Commission.
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"FTC" shall mean the United States Federal Trade Commission.
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"Financial Statements" shall have the meaning given to such term in
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Section 6.09.
"GAAP" shall mean U.S. generally accepted accounting principles as in
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effect on the date hereof.
"Governance Agreement" shall mean the Governance Agreement, to be
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entered into between the Company, TDF and DFI (BV) upon the Closing, an agreed
form of which is attached as Exhibit C to this Agreement.
"Government Authority" shall mean the government of any sovereign
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nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, or other entity
exercising executive, legislative, judicial, regulatory or administrative powers
or functions of or pertaining to government.
"Governmental Entity" shall mean any Federal, state, local or foreign
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government or any court of competent
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jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign.
"Group" shall mean the Company and each of its Subsidiaries.
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"Hazardous Materials" shall mean all explosive or radioactive
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substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including asbestos or asbestos-containing materials, polychlorinated
biphenyls, infectious or medical wastes, and all other substances or wastes
regulated pursuant to Environmental Laws.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
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of 1976.
"Indebtedness" shall mean all obligations, without duplication,
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(including without limitation hedging obligations), contingent and otherwise,
which should, in accordance with GAAP consistently applied, be classified upon
the obligor's consolidated balance sheet as liabilities, including, without
limitation, liabilities secured by any mortgage on property owned or acquired
subject to such mortgage, and also including, without limitation, (i) all
guaranties, endorsements and other contingent obligations, in respect of
Indebtedness of others, whether or not the same are or should be so reflected in
said balance sheet, except guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
business, (ii) a preferred share which is mandatorily redeemable for cash or
exchangeable for debt securities and (iii) the present value of any lease
payments due under leases required to be capitalized in accordance with
applicable Statements of Financial Accounting Standards, determined in
accordance with applicable Statements of Financial Accounting Standards;
provided that the foregoing shall not include any such obligations with respect
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to trade payables under 90 days old.
"Intellectual Property" shall mean, with respect to any person, all of
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its or any of its Subsidiaries' material patents (including all reissues,
divisions, continuations and extensions thereof), patent applications, patent
rights, trademarks, trademark registrations, trademark applications,
servicemarks, tradenames, business names, brand names, copyrights, copyright
registrations, designs, design registrations, and all rights to any of the
foregoing.
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"IPO" shall mean the firm commitment underwriting of an initial public
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offering of the Common Stock of the Company with a price per share of Common
Stock of not less than an amount to be agreed between the Company, TDF and the
CTSH Shareholders (as adjusted for any stock split, stock dividend, rights
offering, recapitalization, reclassification, or other similar transaction) and
gross proceeds of not less than an amount to be agreed between the Company and
TDF which is registered under the Securities Act and which has been approved for
listing prior to the Closing on the New York Stock Exchange, Inc., the American
Stock Exchange, or Nasdaq NMS (subject in any such case to official notice of
issuance).
"IPO Closing" shall mean the closing of the IPO pursuant to the
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Underwriting Agreement.
"IPO Documents" shall mean the IPO SEC Documents and the closing
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documents required to be delivered to the underwriters for the IPO pursuant to
the Underwriting Agreement.
"IPO SEC Documents" shall have the meaning given to such term in
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Section 6.31.
"Judgment" shall have the meaning given to such term in Section 5.03
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hereof.
"Liens" shall have the meaning given to such term in Article II
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hereof.
"Material Adverse Effect" shall mean, with respect to any person, a
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material adverse effect on the business, financial condition or results of
operations of such person or on the ability of such person to perform its
obligations under this Agreement and the other Transaction Documents to which it
is a party.
"Nextel Transaction" shall mean the right of the Company and its
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Subsidiaries to acquire and construct towers and ancillary facilities pursuant
to the Site Commitment Agreement dated July 11, 1997 between Castle Tower
Corporation (now merged into Crown Communication Inc.) and Nextel
Communications, Inc., a Delaware corporation.
"Operating Agreement" shall mean the operating agreement to be entered
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into among the Company, CTI, CTSH and TeleDiffusion de France International
S.A., in accordance with the letter agreement among such parties, a copy of
which is attached as Exhibit E to this Agreement.
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"Original CCIC Stockholders Agreement" shall mean the Amended and
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Restated Stockholders Agreement, dated as of August 15, 1997, as amended on
January 28, 1998, among the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇., ▇▇▇▇▇▇ ▇. Crown and ▇▇▇▇▇▇▇ ▇. Crown and certain other parties named
therein.
"person" shall mean an individual, corporation, limited liability
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company, partnership, joint venture, trust or unincorporated organization, or a
government or any agency or political subdivision thereof and shall, as
applicable, include any "group" (which shall have the meaning given to such term
in Section 13(d)(3) of the Exchange Act).
"Required Consents" shall mean (a) any Consent required to be obtained
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or made by or with respect to any person in connection with the consummation of
the Exchange or the Transactions or with the execution, delivery and performance
of any Transaction Document to which such person is a party, including but not
limited to (i) compliance with and filings under the HSR Act, (ii) Consents from
the FTC, (iii) Consents from the FAA and (b) consents from the FCC and the
consents set forth in Schedule III to this Agreement.
"Rights" shall mean any rights issued or distributed to stockholders
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of the Company pursuant to the Rights Plan or any successor thereto.
"Rights Plan" shall mean the Rights Agreement to be adopted by the
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Company pursuant to Section 7.09, any rights plan adopted by the Company
subsequent to the termination of the Rights Plan or the expiration, redemption
or exchange of the Rights.
"SEC" shall mean the U.S. Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar Federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time.
"Senior Preferred Stock" shall mean the Company's Senior Convertible
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Preferred Stock, par value $.01 per share.
"Senior Preferred Warrants" shall mean the Class B Stock Warrants
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granted in connection with the issuance of the Senior Preferred Stock.
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"Series A Convertible Preferred Stock" shall mean the Company's Series
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A Convertible Preferred Stock the terms of which are set forth in the Series A
Convertible Preferred Stock Certificate of Designations (the "Series A
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Certificate of Designations").
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"Series B Convertible Preferred Stock" shall mean the Company's Series
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B Convertible Preferred Stock the terms of which are set forth in the Series B
Convertible Preferred Stock Certificate of Designations (the "Series B
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Certificate of Designations").
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"Series C Convertible Preferred Stock" shall mean the Company's Series
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C Convertible Preferred Stock the terms of which are set forth in the Series C
Convertible Preferred Stock Certificate of Designations (the "Series C
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Certificate of Designations").
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"Southpointe Transaction" shall mean the acquisition of the land and
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building located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
by Crown Communication Inc. from Southpointe Corporate Centers, Ltd. for
approximately $5,300,000 plus unpaid rent in an amount not to exceed $200,000.
"Stockholders Agreement" shall mean the Stockholders Agreement to be
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entered into among the Company and the parties named in Schedule I thereto, upon
the Closing, an agreed form of which is attached as Exhibit A to this Agreement.
"Subsidiary" or "Subsidiaries" when used with respect to any person
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shall mean (i) any other person, whether incorporated or unincorporated, which
is either required to be consolidated with such person under GAAP or (ii) is an
affiliate directly controlled by such person, or indirectly through one or more
intermediaries within the meaning of Rule 1.02(x) of Regulation S-X under the
Exchange Act.
"Tax" (including with correlative meaning, "Taxes") shall mean all
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Federal, state, local, foreign and other government income, profits, franchise,
gross receipts, customs duty, capital stock, severance, stamp, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise,
production, value added, transfer, occupancy and other taxes, duties or
assessments of any nature whatsoever, together with all interest, penalties and
interest in respect of such penalties and additions.
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"Tax Return" shall mean all returns, amended returns, and reports,
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including elections, declarations, disclosures, schedules, estimates and
information returns, required to be supplied to a Tax authority relating to
Taxes.
"TDF Services Agreement" (as amended and restated) shall mean the
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Services Agreement in a form reasonably satisfactory to TDF and the Company to
be entered into between TDF and CTI upon the Closing.
"TDF Shares" shall mean the DFI (BV) Purchased Shares and the Existing
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TDF Shares.
"Total Enterprise Value" shall have the meaning given to such term in
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the Governance Agreement.
"Transaction Documents" shall mean this Agreement; the Stockholders
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Agreement; the Governance Agreement; the Candover-Berkshire Agreement; the
Operating Agreement; the TDF Services Agreement (as amended and restated); the
CTSH Shareholders Agreement; the Amended Articles of Association of CTSH; the
Amended and Restated By-laws; the Amended and Restated Charter; the Rights Plan
and any other documents ancillary to the foregoing.
"Transactions" shall mean each of the transactions contemplated by the
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Transaction Documents.
"Underwriting Agreement" means the firm commitment underwriting
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agreement to be entered into by the Company and the underwriters in connection
with the IPO.
"VISI Transaction" shall mean the right of the Company and its
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Subsidiaries to acquire additional stock of Visual Intelligence Systems, Inc., a
Texas corporation, upon the conversion of a Convertible Subordinated Note Due
2007 in the principal amount of $1,970,000 plus certain other events as more
specifically described in the Securities Purchase and Loan Agreement dated June
23, 1997 among Castle Tower Holdings Corp. (now Crown Castle International
Corp.), Visual Intelligence Systems, Inc. and the Shareholders of Visual
Intelligence Systems, Inc. named in Schedule I of such agreement.
SECTION 1.02. Adjustment of Exchange Ratio. In case the Company
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shall at any time after the date hereof (i) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock or other capital
stock of the Company, (ii) subdivide its outstanding shares of Common Stock into
a greater number of shares, (iii) combine its
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outstanding shares of Common Stock into a smaller number of shares or (iv) issue
by reclassification of the Common Stock any shares of capital stock of the
Company, the Exchange Ratio shall be adjusted so that the holder of any CTSH
Shares thereafter surrendered for conversion pursuant to the Exchange Ratio
shall be entitled to receive the number of shares of Common Stock or other
capital stock of the Company which such holder would have owned or been entitled
to receive immediately following such action had such shares been converted
immediately prior thereto.
ARTICLE II
Transfer of CTSH Shares
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On the Closing Date, and upon the terms and subject to the conditions
set forth herein, DFI (BV) and each of the CTSH Shareholders agrees to transfer
to the Company, free and clear of all liens, security interests, claims, charges
and encumbrances of any kind ("Liens"), and the Company hereby agrees to accept
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in exchange for the issuance of Company Shares on the basis set forth in Article
III from DFI (BV) and each of the CTSH Shareholders, the number of CTSH Shares
set forth opposite DFI (BV)'s and each such CTSH Shareholder's name on Schedule
I hereto. Subject to the terms and conditions of this Agreement, DFI (BV) and
each of the CTSH Shareholders will deliver to the Company on the Closing Date
(in exchange for the Company Shares issuable pursuant to Article III) (i) duly
executed transfers in respect of the CTSH Shares held by DFI (BV) and that CTSH
Shareholder and the share certificate(s) in respect thereof and (ii) such other
documents, including evidence of authority, as the Company may reasonably
request. Any stamp duty payable in connection with the transfer or exchange of
the CTSH Shares to the Company shall be paid by the Company.
ARTICLE III
Issuance of Company Shares
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On the Closing Date, and upon the terms and subject to the conditions
set forth herein, the Company will issue to DFI (BV) and each of the CTSH
Shareholders a number of Company Shares equal to the product of (i) the Exchange
Ratio and (ii) the corresponding number of CTSH Shares (e.g., per one CTSH
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Ordinary Share and 999 CTSH Preference Shares) set forth opposite DFI (BV)'s and
such CTSH Shareholder's name on Schedule I hereto (it being understood
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that if such product requires a fractional share to be issued to DFI (BV) or any
CTSH Shareholder, such fraction shall be rounded up to the nearest whole
number), in exchange for the CTSH Shares to be delivered by DFI (BV) and such
CTSH Shareholder to the Company pursuant to Article II. Subject to the terms and
conditions of the Agreement, the Company will deliver to DFI (BV) and each of
the CTSH Shareholders at Closing (in exchange for the CTSH Shares to be
delivered by DFI (BV) and such CTSH Shareholders to the Company pursuant to
Article II) (i) duly executed share certificates in respect of such Company
Shares to be issued pursuant to this Article III (which Company Shares will be
issued free and clear of all Liens) and (ii) such other documents, including
evidence of authority, as DFI (BV) and such CTSH Shareholder may reasonably
request. CTSH Shareholders who do not hold CTSH Ordinary Shares and CTSH
Preference Shares in the ratio of 1 to 999 may combine their holdings for the
purpose of transferring CTSH shares to the Company pursuant to Article II and
shall receive from the Company in consideration therefor pursuant to this
Article III an aggregate number of Company Shares determined as provided above,
which shares shall be allocated between or among such CTSH Shareholders as they
shall specify in a written direction signed by them and delivered to the
Company.
ARTICLE IV
The Closing of the Exchange
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Upon the terms and subject to the conditions herein set forth, the
closing of the Exchange provided for herein (the "Closing") shall take place
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simultaneously with the IPO Closing at such place as shall be fixed by agreement
among the parties hereto. The date and time of Closing are herein referred to
as the "Closing Date".
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ARTICLE V
Representations, Warranties and Covenants
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of DFI (BV) and the CTSH Shareholders
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Each of DFI (BV) and each CTSH Shareholder (and TDF, with respect to
Sections 5.02 through 5.08 inclusive) represents and warrants as to itself to,
and covenants as to
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itself with, the Company and each of the other shareholders of CTSH as follows:
SECTION 5.01. Title to Shares. In the case of the DFI (BV) Purchased
----------------
Shares, DFI (BV) will, upon Closing, have the right to such beneficial ownership
of the DFI (BV) Purchased Shares as was held in such shares by each of the other
parties to the Candover-Berkshire Agreement (other than TDF, the Company and
CTSH) immediately prior to their purchase by DFI (BV), set forth opposite its
name on Schedule I hereto and will, upon the Closing, have the right to such
good title to such DFI (BV) Purchased Shares, as was held in such shares by each
of the other parties to the Candover-Berkshire Agreement (other than TDF, the
Company and CTSH) immediately prior to their purchase by DFI (BV), free and
clear of all Liens, and in the case of each of the CTSH Shareholders, it is the
beneficial and registered owner of the CTSH Shares set forth opposite its name
on Schedule I hereto and has good title to such CTSH Shares, free and clear of
all Liens.
SECTION 5.02. Authority. It has full right, power and authority to
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sell, transfer and deliver to the Company the full legal and beneficial
ownership in the DFI (BV) Purchased Shares, subject as provided in Section 5.01,
and the CTSH Shares, as the case may be, to be exchanged by it pursuant to this
Agreement and to consummate the Transactions. This Agreement has been and each
of the other Transaction Documents to which it is a party upon Closing will be,
duly and validly executed and delivered by it and this Agreement is, and each of
the other Transaction Documents to which it is a party upon the Closing will be,
the legal, valid and binding obligation of it enforceable against it in
accordance with its terms (except with respect to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law). Except for the Required
Consents, no action, consent or approval by, or filing with, any Federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, or any other regulatory or self-regulatory body, is required in
connection with the execution and delivery by it of this Agreement or the
consummation by it of the Transactions.
SECTION 5.03. No Conflicts. Assuming the receipt of the Required
-------------
Consents, the execution, delivery and performance by it of this Agreement and
each of the other
15
Transaction Documents to which it is a party do not, and compliance by it with
the terms hereof and thereof and the consummation by it of the Exchange and the
other Transactions will not, conflict with, or result in, any violation of or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or to increased, additional, accelerated or
guaranteed rights or entitlements of any person under, or result in the creation
of any Lien upon any of its properties or assets or any of its Subsidiaries
under, any provision of (i) its charter, by-laws or the comparable charter or
organizational documents of any Subsidiary, (ii) any material contract, lease,
license, indenture, note, bond, agreement, permit, concession, franchise or
other instrument to which it or any of its Subsidiaries is a party or by which
any of their respective properties or assets is bound or (iii) subject to the
filings and other matters referred to in Section 5.02, any judgment, order or
decree ("Judgment") or statute, law (including common law), ordinance, rule or
--------
regulation ("Applicable Law") applicable to it or any of its Subsidiaries or
--------------
their respective properties or assets other than, in the case of clauses (ii)
and (iii) above, such items that, individually or in the aggregate, would not
have a Material Adverse Effect on it and its Subsidiaries, taken as a whole.
SECTION 5.04. No Bankruptcy, etc. There has not been filed any
-------------------
petition or application, or any proceedings commenced which have not been
discharged, by or against it with respect to any of its assets under any law,
domestic or foreign, relating to bankruptcy, reorganization, compromise,
arrangements, insolvency, readjustment of debt or creditor's rights, and no
assignment has been made by it for the benefit of its creditors.
SECTION 5.05. Shareholders Agreements. Except for the Transaction
------------------------
Documents and the Existing CTSH Agreements, it is not a party to any voting
trust agreements or any other contracts, agreements, arrangements, commitments,
plans or understandings, written or oral, restricting or otherwise relating to
voting or dividend rights with respect to the Existing TDF Shares owned by TDF
or the CTSH Shares owned by the CTSH Shareholders or, in the case of the DFI
(BV) Purchased Shares, to be owned by DFI (BV) on the Closing Date, or otherwise
granting any person any right in respect of such Existing TDF Shares, DFI (BV)
Purchased Shares or CTSH Shares, as the case may be.
16
SECTION 5.06. Litigation. There is no claim, action, suit,
-----------
proceeding, arbitration, investigation or inquiry before any Federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, any securities or commodities exchange, other regulatory body or any
private arbitration tribunal now pending, or threatened, against or relating to
it which would adversely affect its ability to consummate the Exchange and the
other Transactions.
SECTION 5.07. Further Assurances. It will execute and deliver, or
-------------------
cause to be executed and delivered, such additional or further transfers,
assignments, endorsements and other instruments as the Company, TDF, DFI (BV) or
any CTSH Shareholder, as the case may be, may reasonably request for the purpose
of effectively carrying out the Exchange and the other Transactions.
SECTION 5.08. Brokers and Finders. Except for fees for financial
--------------------
advice or other services rendered by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ to TDF in connection
with the Exchange and the other Transactions (which fees shall be paid by TDF),
neither it nor any of its respective officers, directors or employees has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finder's fees in connection with the Transactions.
SECTION 5.09. Nature of Purchase. Except for any sales by DFI (BV)
-------------------
or any CTSH Shareholder pursuant to the Underwriting Agreement, it is exchanging
its CTSH Shares for Company Shares for its own account for investment, not as a
nominee or agent, and not with a view to the resale or distribution of the
Company Shares or any part thereof, and it has no present intention of selling,
granting any participation in, or otherwise distributing the same. It
acknowledges and understands that the Company Shares may only be transferred or
sold pursuant to a registration under the Securities Act and/or applicable state
securities or blue sky laws or an available exemption from such registration.
SECTION 5.10. Accredited Investor. Except for the CTSH Non-
--------------------
Accredited Shareholders, it is an "accredited investor" within the meaning of
Rule 501 under the Securities Act.
SECTION 5.11. No Funds Provided By TDF. The funding employed by DFI
-------------------------
(BV) for the acquisition of the DFI (BV) Purchased Shares has been and will
ultimately be provided by TeleDiffusion de France S.A.
17
SECTION 5.12. Certain Transfers. During the period from the Closing
------------------
to the first anniversary of the Closing, DFI (BV) will not transfer, directly or
indirectly, (i) the DFI (BV) Purchased Shares other than to the Company pursuant
to the terms of this Agreement and (ii) the Class A Stock issued to DFI (BV) in
exchange for such DFI (BV) Purchased Shares pursuant to the terms of this
Agreement other than to (A) a person who is not an Affiliate of any member of
the TDF Group or, (B) the Company pursuant to the terms of the Governance
Agreement or (C) a direct or indirect shareholder of TeleDiffusion de France
S.A.
ARTICLE VI
Representations, Warranties and
-------------------------------
Covenants of the Company
------------------------
The Company represents and warrants to, and covenants with, TDF, DFI
(BV) and each of the CTSH Shareholders as follows:
SECTION 6.01. Corporate Status of the Company. The Company is a
--------------------------------
corporation duly organized, validly existing and in good standing, under the
laws of the State of Delaware and has all requisite corporate power to carry on
its business as it is now being conducted and to own and operate such business.
SECTION 6.02. Validity of Company Shares. The Company Shares have
---------------------------
been duly authorized, and, when the Company Shares have been delivered in
accordance with this Agreement on the Closing Date, such Company Shares will
have been validly issued, fully paid and nonassessable.
SECTION 6.03. Authority of the Company. The Company has full right,
-------------------------
power and authority to issue and deliver to DFI (BV) and each of the CTSH
Shareholders the Company Shares pursuant to this Agreement and to consummate the
Transactions. This Agreement has been, and each of the other Transaction
Documents to which it is a party upon Closing will be, duly and validly executed
and delivered by the Company and this Agreement is, and each of the other
Transaction Documents to which it is a party upon the Closing will be, the
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms (subject to applicable laws of public
policy in the case of Section 10.17 and Section 4.06 of the Stockholders
Agreement and to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
18
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law).
Except for the Required Consents and for the approvals of the stockholders of
CCIC pursuant to Sections 6.29 and 7.10, no action, consent or approval by, or
filing with, any Federal, state, municipal, foreign or other court or
governmental or administrative body or agency, or any other regulatory or self-
regulatory body, or any other person is required in connection with the
execution and delivery by the Company of this Agreement or the consummation by
the Company of the Transactions.
SECTION 6.04. No Conflicts. The execution, delivery and performance
-------------
of this Agreement and each of the other Transaction Documents to which the
Company is a party do not, and compliance with the terms hereof and thereof and
the consummation of the Exchange and the other Transactions will not conflict
with, or result in, any violation of or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancelation or
acceleration of any obligation or to loss of a benefit under, or to increased,
additional, accelerated or guaranteed rights or entitlements of any person
under, or result in the creation of any Lien upon any of its properties or
assets or any of its Subsidiaries under, any provision of (i) its charter, by-
laws or the comparable charter or organizational documents of any Subsidiary,
(ii) any contract, lease, license, indenture, note, bond, agreement, permit,
concession, franchise or other instrument to which it or any of its Subsidiaries
is a party or by which any of their respective properties or assets is bound or
(iii) subject to the filings and other matters referred to in Section 6.02, any
Judgment or Applicable Law applicable to it or any of its Subsidiaries or their
respective properties or assets other than, in the case of clauses (ii) and
(iii) above, such items that, individually or in the aggregate, would not have a
Material Adverse Effect on the CCIC Group, taken as a whole.
SECTION 6.05. No Bankruptcy, etc. There has not been filed any
-------------------
petition or application, or any proceedings commenced which have not been
discharged, by or against any member of the CCIC Group with respect to any of
its assets under any law, domestic or foreign, relating to bankruptcy,
reorganization, compromise, arrangements, insolvency, readjustment of debt or
creditors rights (and the Company has not received any notice of any intention
to make or commence any such filing or proceeding), and no assignment
19
has been made (or agreed to be made) by any member of the CCIC Group for the
benefit of its creditors.
SECTION 6.06. Shareholders Agreements. Except for the Transaction
------------------------
Documents, the Senior Preferred Stock, the Senior Preferred Warrants and the
Existing CCIC Agreements, the Company is not a party to any voting trust
agreements or any other contracts, agreements, arrangements, commitments, plans
or understandings, written or oral, restricting or otherwise relating to voting
or dividend rights with respect to the Company and to the Company's knowledge,
there are no such other material agreements between any stockholders of the
Company.
SECTION 6.07. Further Assurances. The Company will execute and
-------------------
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements and other instruments as any of TDF and the
CTSH Shareholders may reasonably request for the purpose of effectively carrying
out the Exchange and to perform the other Transactions.
SECTION 6.08. Offering of Shares. Neither the Company, directly or
-------------------
indirectly, nor any agent on its behalf has offered or will offer the Company
Shares or any similar securities or has solicited or will solicit an offer to
acquire the Company Shares or any similar securities from any person so as to
require registration of the issuance of the Company Shares to be delivered to
DFI (BV) and each of the CTSH Shareholders under the circumstances contemplated
by this Agreement under the provisions of Section 5 of the Securities Act.
SECTION 6.09. Financial Statements; Undisclosed Liabilities. (a) (i)
----------------------------------------------
The audited combined balance sheet of the Company and its Subsidiaries as of
December 31, 1997, together with the notes thereto (the "Balance Sheet"), and
-------------
the audited combined statements of income and cash flows of the Company and its
Subsidiaries for the period ended December 31, 1997 and (ii) the audited
combined balance sheets of the Company and its Subsidiaries as of December 31,
1997 and December 31, 1996, and the audited combined statements of income and
cash flows of the Company and its Subsidiaries for the years ended December 31,
1997 and December 31, 1996, together with the notes to such financial statements
(the financial statements described in clauses (i) and (ii) above, together with
the notes to such financial statements, collectively, the "Financial
---------
Statements") have been prepared in conformity with GAAP (except as described in
----------
the notes thereto) and on that basis fairly present, in all material respects
(subject to the
20
foregoing exceptions and, in the case of the unaudited statements, to normal,
recurring year-end audit adjustments), the combined financial condition and
results of operations of the Company and its Subsidiaries as of the respective
dates thereof and for the respective periods indicated and are true, correct and
complete in all material respects.
(b) None of the Company and its Subsidiaries have any material
liabilities or obligations of any nature (whether accrued, absolute, contingent,
unasserted or otherwise) of a nature required by GAAP to be reflected on a
consolidated balance sheet of the Company and its Subsidiaries or in the notes
thereto except (i) as disclosed, reflected or reserved against in the Balance
Sheet and the notes thereto, (ii) for liabilities and obligations incurred in
the ordinary course of business consistent with past practice since the date of
the Balance Sheet and not in violation of this Agreement and (iii) for Taxes.
SECTION 6.10. Taxes. Except to the extent that a failure to do so
------
would not result in a Material Adverse Effect on the CCIC Group, taken as a
whole, the Company and each of its Subsidiaries has (i) timely filed or caused
to be filed all Tax Returns required to be filed by the Company or any of its
Subsidiaries (taking into account any extension of time within which to file)
and (ii) paid or caused to be paid all Taxes with respect to taxable periods
covered by such Tax Returns except Taxes that are being contested in good faith
by appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves in accordance with
GAAP.
SECTION 6.11. Intellectual Property. The Company and each of its
----------------------
Subsidiaries own or have all rights to use its Intellectual Property as
necessary in connection with the business of the Company and such Subsidiaries
as presently conducted, except for such Intellectual Property the failure of
which to own or have individually or in the aggregate is not reasonably likely
to have a Material Adverse Effect on the CCIC Group, taken as a whole. To the
Company's knowledge, none of the Intellectual Property used by the Company and
its Subsidiaries, and no use thereof, infringes upon or violates any patent,
copyright, trade secret or other proprietary right of any other person and, to
the Company's knowledge, no claim with respect to any such infringement or
violation is pending or threatened, except for any such infringement or
violation which, individually or in the aggregate, has not had and is not
21
reasonably likely to have a Material Adverse Effect on the CCIC Group, taken as
a whole.
SECTION 6.12. ERISA. (a) Each "employee pension benefit plan" (as
------
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"))(hereinafter a "Pension Plan"), "employee welfare benefit
----- ------------
plan" (as defined in Section 3(1) of ERISA) (hereinafter a "Welfare Plan"), and
------------
each other plan, arrangement or policy (written or oral) relating to stock
options, stock purchases, compensation, deferred compensation, severance, fringe
benefits or other employee benefits, in each case maintained or contributed to,
or required to be maintained or contributed to, by the Company or its
Subsidiaries or other affiliates for the benefit of any present or former
employee, officer or director (each of the foregoing, a "Benefit Plan") has been
------------
administered in all material respects in accordance with its terms. The Company
and its Subsidiaries and all the Benefit Plans are in compliance with the
applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended
(the "Code"), all other Applicable Laws and all applicable collective bargaining
----
agreements, except where the failure to comply would not be reasonably expected
to result in a Material Adverse Effect on the CCIC Group, taken as a whole. The
Company has delivered or made available to TDF, DFI (BV) and each of the CTSH
Shareholders true, complete and correct copies of (i) each Benefit Plan (or, in
the case of unwritten plans, descriptions thereof), (ii) the most recent annual
report on Form 5500 (including all schedules and attachments thereto) filed with
the Internal Revenue Service with respect to each Benefit Plan (if any such
report was required), (iii) the most recent summary plan description for each
Benefit Plan for which such a summary plan description is required by Applicable
Law or was otherwise provided to plan participants or beneficiaries and (iv)
each trust agreement and insurance or annuity contract or other funding or
financing arrangement relating to any Benefit Plan.
(b) None of the Company or any other person or entity that, together
with the Company, is or was treated as a single employer under Section 414 of
the Code (each, including the Company, a "Commonly Controlled Entity") has
--------------------------
incurred any liability to a Pension Plan under Title IV of ERISA (other than for
contributions not yet due) or to the Pension Benefit Guaranty Corporation (other
than for payment of premiums not yet due) that, when aggregated with other such
liabilities, could reasonably be expected to result in a Material Adverse Effect
on the CCIC Group, taken as a whole, which liability has not been fully paid.
22
(c) No Commonly Controlled Entity is required to contribute to or has
any liability with respect to any "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) or has withdrawn from any multiemployer plan where such
withdrawal has resulted or could reasonably be expected to result in any
"withdrawal liability" (within the meaning of Section 4201 of ERISA) that has
not been fully paid and that could reasonably be expected to result in a
Material Adverse Effect on the CCIC Group, taken as a whole.
(d) Neither the Company nor any of its Subsidiaries will be obligated
to pay or provide any additional benefits or any acceleration of the time of
payment or vesting of any benefits as a result of the Exchange and the other
Transactions, other than relating to the vesting or CTSH options upon a change
in control of CTSH in connection with the Exchange.
SECTION 6.13. Compliance with Applicable Laws. Except for any matter
--------------------------------
that is not likely to have a Material Adverse Effect on the Company and its
Subsidiaries taken as a whole, neither of the Company nor any of its
Subsidiaries is in violation of, or has violated, any applicable provisions of
any Applicable Law.
SECTION 6.14. Environmental Matters. Except as would not reasonably
----------------------
be expected to have a Material Adverse Effect on the CCIC Group, taken as a
whole, (a) the Company holds, and is in compliance with, all permits, licenses
and authorizations from Government Authorities required for the Company to
conduct its operations under applicable Environmental Laws; (b) the Company is
in compliance with applicable Environmental Laws; (c) the Company has not
received any written communication within the past three years from any
Government Authority or any other person that alleges that the Company is in
violation of applicable Environmental Laws or otherwise subject to liability in
connection with applicable Environmental Laws; and (d) the Company has not
entered into or agreed to any court order or decree and is not subject to any
final judgment, order or decree relating to compliance with applicable
Environmental Laws.
SECTION 6.15. Accuracy of Information. All information supplied in
------------------------
writing by the Company or its agents to TDF, DFI (BV) and the CTSH Shareholders
and to their respective agents is true and correct and not misleading, whether
by way of omission, any failure to update or otherwise, in any material respect.
23
SECTION 6.16. Constitutional Documents, Books and Records. The
--------------------------------------------
Company has prior to the execution of this Agreement made available to TDF, DFI
(BV) and each CTSH Shareholder, or their respective representatives, true and
complete copies of (i) the charter and by-laws, each as amended to the date
hereof, of the Company and (ii) the comparable governing instruments, each as
amended to the date hereof, of each Subsidiary of the Company. The stock
certificate and transfer books and the minute books of the Company and each of
its Subsidiaries (which have been made available for inspection by TDF, DFI (BV)
and each CTSH Shareholder, or their respective representatives) are true and
complete.
SECTION 6.17. Title to Assets Other than Real Property Interests;
---------------------------------------------------
Title to Real Property. (a) Each of the Company and its Subsidiaries has good
-----------------------
and valid title to all assets necessary for the continued use and operation in
the business of the Company and its Subsidiaries as presently conducted, except
for imperfections of title or encumbrances, if any, which would not,
individually or in the aggregate, have a Material Adverse Effect on the CCIC
Group, taken as a whole.
(b) The Company and its Subsidiaries have (i) good and insurable fee
title to all land owned in fee by the Company and its Subsidiaries and (ii) good
and valid title to all leasehold estates in land leased as a tenant by the
Company and its Subsidiaries, in each case, as necessary for the continued use
and operation in the business of the Company and its Subsidiaries as presently
conducted, except for easements, covenants, rights-of-way and other similar
restrictions, encumbrances or imperfections of title, if any, which do not
individually or in the aggregate, have a Material Adverse Effect on the CCIC
Group, taken as a whole.
SECTION 6.18. SEC Filings. The Company has filed all required
------------
reports, schedules, forms, statements and other documents with the SEC (the
"Company SEC Documents"), which Company SEC Documents comply in all material
---------------------
respects with the requirements of the Securities Act or the Exchange Act, as the
case may be, and the applicable rules and regulations promulgated thereunder,
including without limitation the registration statement on Form S-4 relating to
10 5/8% Senior Discount Notes Due 2007, which registration statement, at the
time the registration statement became effective, did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
24
SECTION 6.19. Working Capital. With respect to the existing bank and
----------------
other facilities available to it, each of the Company and its Subsidiaries has
sufficient working capital for the purposes of continuing to carry on its
business as presently conducted for the foreseeable future and for the purposes
of executing, carrying out and fulfilling in accordance with their terms all
orders, projects and contractual obligations which have been placed with or
undertaken by it.
SECTION 6.20. Anti-Competitive Arrangements. (a) None of the Company
------------------------------
or its Subsidiaries is now, or has during the last six years been, a party to
any agreement, arrangement, concerted practice or course of conduct which (i)
infringes Article 85 or 86 of the Treaty establishing the European Community or
any other competition, antitrust or similar legislation in any jurisdiction in
which the Company carries on business or has assets or sales; or (ii) is void,
unenforceable, in breach of or subject to registration (whether in whole or in
party) or may render the Company liable to proceedings under any such
legislation as is referred to in clause (i) above.
(b) None of the Company and its Subsidiaries has given any
undertaking and no order has been made against or in relation to it pursuant to
any competition, antitrust or similar legislation in any jurisdiction in which
it carries on business or has assets or sales.
SECTION 6.21. Contracts. All agreements, contracts, leases,
----------
licenses, commitments or instruments of the Company or any of its Subsidiaries
that have a material impact on the business and operations of the CCIC Group,
taken as a whole (collectively, the "Contracts"), are valid, binding and in full
---------
force and effect and are enforceable by the Company or its Subsidiaries in
accordance with their respective terms subject to, with respect to parties other
than the Company or its Subsidiaries, applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws affecting
creditors' rights generally, general principles of equity and the discretion of
courts in granting equitable remedies. The Company and its Subsidiaries have
performed all material obligations required to be performed by them to date
under the Contracts and they are not (with or without the lapse of time or the
giving of notice, or both) in breach or default in any material respect
thereunder and no other party to any of the Contracts is (with or without the
lapse of time or the giving of notice, or both) in breach or default in any
material respect thereunder.
25
SECTION 6.22. Insurance. (a) The Company and its Subsidiaries
----------
maintain policies of fire and casualty, liability and other forms of insurance
("Insurance Policies") in such amounts, with such deductibles and against such
------------------
risks and losses as are, in the Company's reasonable judgment, appropriate for
the business and assets of the Company and its Subsidiaries. All such Insurance
Policies are in full force and effect, all premiums due and payable thereon have
been paid, and no notice of cancelation or termination has been received with
respect to any such policy which has not been replaced on substantially similar
terms prior to the date of such cancelation.
(b) There is no material default by the Company or any of its
Subsidiaries or any other person, with respect to any provision contained in any
such Insurance Policy, nor has there been any material failure by the Company or
any of its Subsidiaries to give notice or to present any claim under any such
policy in the manner or detail required by the policy. To the knowledge of the
Company and its Subsidiaries, no event has occurred that would be reasonably
likely to form the basis of a claim that would be covered by an Insurance Policy
held by or on behalf of such party or its Subsidiaries that (i) has not been
asserted, (ii) if asserted, would result in a diminution of the remaining
available coverage under such policy and (iii) individually or in the aggregate,
would have a Material Adverse Effect on the CCIC Group, taken as a whole.
SECTION 6.23. Employee and Labor Matters. (a) There is no labor
---------------------------
strike, dispute, work stoppage or lockout pending, or, to the knowledge of the
Company or its Subsidiaries, threatened, against or affecting the Company or its
Subsidiaries; (b) no union organizational campaign is in progress with respect
to the employees of the Company or its Subsidiaries and no question concerning
representation exists respecting such employees; (c) none of the Company or its
Subsidiaries is engaged in any unfair labor practice; (d) there is no unfair
labor practice charge or complaint against the Company or any of its
Subsidiaries pending, or, to the knowledge of the Company and its Subsidiaries,
threatened, before the National Labor Relations Board; (e) there are no pending,
or, to the knowledge of the Company or its Subsidiaries, threatened, union
grievances against the Company or any of its Subsidiaries as to which there is a
reasonable possibility of adverse determination and that, if so determined,
individually or in the aggregate, would have a Material Adverse Effect on the
CCIC Group, taken as a whole; (f) there are no pending, or, to the knowledge of
the Company or its Subsidiaries, charges against the Company or any of its
Subsidiaries or any
26
current or former employee of the Company or its Subsidiaries before the Equal
Employment Opportunity Commission or any state or local agency responsible for
the prevention of unlawful employment practices; (g) none of the Company or its
Subsidiaries has received written notice since January 1, 1998 of the intent of
any governmental entity responsible for the enforcement of labor or employment
laws to conduct an investigation of or affecting the Company or any of its
Subsidiaries and, to the knowledge of the Company and its Subsidiaries, no such
investigation is in progress; and (h) each of the Company and its Subsidiaries
is in material compliance with all Federal, state and local labor laws and
regulations.
SECTION 6.24. Licenses; Permits. Each of the Company and its
------------------
Subsidiaries has all material licenses, permits and authorizations required for
the conduct of the business of the Company and its Subsidiaries under all
Applicable Laws. All such licenses, permits and authorizations are validly held
by the relevant Company or its Subsidiaries, the Company and its Subsidiaries
have complied in all material respects with all terms and conditions thereof,
and the same will not be subject to suspension, material modification,
revocation or nonrenewal as a result of the execution and delivery of this
Agreement, the other Transaction Documents or the consummation of the
Transactions.
SECTION 6.25. Corporate Name. The Company and its Subsidiaries (i)
---------------
have the right to use their respective names as the name of a corporation in any
jurisdiction in which the Company or such Subsidiary does business and (ii) have
not received any notice of conflict during the past two years with respect to
the rights of others regarding the corporate names of the Company and its
Subsidiaries; except as would not be reasonably likely to have a Material
Adverse Effect on the CCIC Group, taken as a whole.
SECTION 6.26. Suppliers. Since the date of the Balance Sheet, none
----------
of the Company and its Subsidiaries has entered into or made any material
contract or commitment for the purchase of merchandise other than in the
ordinary course of business consistent with past practice. Since the date of
the Balance Sheet, there has not been (a) any adverse effect in the business
relationship of the Company or its Subsidiaries with any supplier of merchandise
to the Company or its Subsidiaries or (b) any change in any material term
(including credit terms) of the supply agreements or related arrangements with
any such supplier; except in the case of clauses (a) and (b) above, as would
27
not be reasonably likely to have a Material Adverse Effect on the CCIC Group,
taken as a whole.
SECTION 6.27. Customers. Since the date of the Balance Sheet, there
----------
has not been (a) any adverse effect in the business relationship of the Company
or its Subsidiaries with any customer of the Company or its Subsidiaries or (b)
any change in any material term (including credit terms) of the sales agreements
or related agreements with any such customer; except in the case of clauses (a)
and (b) above, as would not be reasonably likely to have a Material Adverse
Effect on the CCIC Group, taken as a whole.
SECTION 6.28. Absence of Certain Changes. Since the date of the
---------------------------
Balance Sheet and except as set forth in the Company SEC Documents, the Company
and its Subsidiaries have conducted their business in the ordinary course
consistent with past practice and there has not been:
(a) any event, occurrence or development of a state of circumstances
or facts which has had or is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on the CCIC Group, taken as a
whole, other than any of the foregoing (i) relating to the economy or
securities markets in general, (ii) relating to the Company's industry in
general or (iii) following the date of this Agreement, arising from the
announcement or pendency of this Agreement, the Exchange or the other
Transactions; or
(b) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company or
any of its Subsidiaries which, individually or in the aggregate, has had or
is reasonably likely to have a Material Adverse Effect on the CCIC Group,
taken as a whole.
SECTION 6.29. Stockholder Approval. The Company has obtained the
---------------------
approval of the stockholders of the Company of the Exchange, this Agreement, the
Governance Agreement and the Stockholders Agreement in accordance with the
Delaware General Corporation Law.
SECTION 6.30. Litigation. Except as set forth in the Company SEC
-----------
Documents, there is no action, claim, suit, investigation, proceeding or
examination pending against or affecting, or to the knowledge of the Company,
threatened or reasonably likely to be brought against or affecting, the Company
or any Subsidiary of the Company or any of their respective properties before
any court or arbitrator or any governmental body, agency, authority or
28
official which, individually or in the aggregate, has had or is reasonably
likely to have a Material Adverse Effect on the CCIC Group, taken as a whole.
The foregoing representation and warranty does not include or relate to any
action, claim, suit, investigation, proceeding or examination arising after the
date hereof (and not, to the Company's knowledge, threatened or reasonably
likely to be brought against or affecting the Company or any Subsidiary of the
Company or their respective properties, on or prior to the date hereof), to the
extent that it challenges or seeks to prevent, enjoin, alter or delay the
Exchange or any of the Transactions contemplated hereby, or threatens to do any
of the foregoing.
SECTION 6.31. IPO SEC Documents. The registration statement on Form
------------------
S-1 to be filed by the Company with the SEC under the Securities Act, any post-
effective amendment or amendments thereto, a related prospectus and all
documents required by the SEC to be filed therewith (collectively, the "IPO SEC
-------
Documents") as of their respective dates, or if amended, as of the date of the
---------
last such amendment, will comply, in all material respects, with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the applicable rules and regulations promulgated thereunder, and the
registration statement, at the time the registration statement becomes
effective, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the prospectus, at the issue date and at
the Closing Date, will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
SECTION 6.32. Company Stockholders. Schedule 6.32 to this Agreement
---------------------
lists all of the Company's stockholders and their respective fully diluted
beneficial ownership (after giving effect to the conversion or exercise of all
outstanding preferred stock, options, warrants and other convertible securities)
in the Company as at the date hereof (both immediately prior and after giving
effect to the Exchange and related Transactions (except the IPO)) and the total
authorized and issued securities of each class (including options, warrants and
other securities convertible or exchangeable or otherwise issuable in respect of
the Company's capital stock) in the capital of the Company and such Schedule
6.32 is true and correct in all respects. Except as otherwise expressly stated
in or contemplated by Schedule 6.32 or in the Transaction
29
Documents or the underwriting agreement to be entered into by the Company in
connection with the IPO, (a) no person has the right (whether exercisable now or
in the future and whether contingent or not) to call for the allotment or issue
or transfer of any share or other security or any loan capital of the CCIC Group
under any option or other agreement (including conversion rights and right of
pre-emption) or otherwise, (b) there is no commitment to give or create any of
the foregoing rights and (c) no person has claimed to be entitled to any such
rights.
SECTION 6.33. No Other Approvals. The approvals pursuant to Sections
-------------------
6.29, 7.05 and 7.10 constitute, or when obtained, will constitute, all the
necessary approvals of the stockholders of the CCIC Group of the Transactions
and the Transaction Documents as required under the General Corporation Law of
the State of Delaware.
SECTION 6.34. Brokers and Finders. Neither the Company nor any of
--------------------
its respective officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions or finder's
fees in connection with the Exchange, the Transactions or the other Transaction
Documents (other than pursuant to existing compensation agreements between the
Company and certain of its officers, directors or employees).
SECTION 6.35. Management Accounts. The unaudited management accounts
--------------------
of the Company for the period from January 1, 1998 to March 31, 1998 (a copy of
which have been initialed for the purpose of identification by Cravath, Swaine &
▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇) have been prepared on a basis substantially consistent
with those employed in preparing the Financial Statements and, on that basis, to
the Company's Knowledge fairly present, in all material respects (subject to any
notes or exceptions thereto and to normal, recurring year-end audit adjustments)
the financial condition and results of operations of the Company as of the
respective dates thereof and for the respective periods indicated.
SECTION 6.36. Nature of Purchase. The Company is delivering Company
-------------------
Shares in exchange for CTSH Shares for its own account for investment, not as a
nominee or agent, and not with a view to the resale or distribution of the CTSH
Shares or any part thereof, and it has no present intention of selling, granting
any participation in, or otherwise distributing the same.
30
SECTION 6.37. Accredited Investor. The Company is an "accredited
--------------------
investor" within the meaning of Rule 501 under the Securities Act.
ARTICLE VII
Certain Covenants
-----------------
SECTION 7.01. Conduct of Business by the Company. Except (i) for
-----------------------------------
matters contemplated by the Transaction Documents and (ii) any transaction
approved by a unanimous vote of the entire Board which would not, if the
Governance Agreement were in effect at the time such vote is taken with respect
to such transaction, be subject to TDF's Veto right pursuant to Section 4.01(b)
of the Governance Agreement, from the date of this Agreement to the Closing Date
the Company shall, and shall cause each of its Subsidiaries to, conduct its
business in the usual, regular and ordinary course in substantially the same
manner as previously conducted. In addition, and without limiting the
generality of the foregoing, except for matters contemplated by the Transaction
Documents, from the date of this Agreement to the Closing Date, the Company
shall not, and shall not permit any of its Subsidiaries to, do any of the
following without the prior written consent of TDF (which consent shall not be
unreasonably withheld, delayed or conditioned):
(i) (A) except for dividends or distributions that may be declared,
set aside, paid or made in accordance with the terms of the Senior
Preferred Stock, declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock, other than
dividends and distributions by a direct or indirect wholly owned subsidiary
of the Company to its parent, (B) split, combine or reclassify any of its
capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock,
or (C) except with respect to the agreement dated as of February 2, 1998,
between the Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, any redemption of the Senior
Preferred Stock on or before August 31, 1998 or any exercise of the Senior
Preferred Warrants, purchase, redeem or otherwise acquire any shares of
capital stock of the Company or any of its Subsidiaries or any other
securities thereof or any rights, warrants or options to acquire any such
shares or other securities;
(ii) issue, deliver, sell or grant (A) any shares of its capital
stock, (B) any other voting securities,
31
(C) any securities convertible into or exchangeable for, or any options,
warrants or rights to acquire, any such shares, voting securities or
convertible or exchangeable securities or (D) any "phantom" stock,
"phantom" stock rights, stock appreciation rights or stock-based
performance units, other than the issuance of Class B Stock upon (1) the
exercise of Company compensatory stock options outstanding on the date of
this Agreement and in accordance with their present terms, (2) conversion
of, or in respect of dividends on, the Senior Preferred Stock or the
exercise of Senior Preferred Warrants and (3) conversion of the Series A
Convertible Preferred Stock, the Series B Convertible Preferred Stock and
the Series C Convertible Preferred Stock;
(iii) amend its certificate of incorporation, by-laws or other
comparable charter or organizational documents;
(iv) except for the Nextel Transaction, the VISI Transaction and the
Southpointe Transaction, (i) acquire or agree to acquire (A) by merging or
consolidating with, or by purchasing the whole or a substantial portion of
the assets or securities of, or by any other manner, any business or any
corporation, partnership, joint venture, association or other business
organization or division thereof that is material to the CCIC Group, taken
as a whole or (B) any assets that are material, individually or in the
aggregate, to the CCIC Group, taken as a whole, or (C) any assets except
purchases of assets that exceed in the aggregate 2% of the Total Enterprise
Value of the CCIC Group, taken as a whole or (ii) incur any capital
expenditures that exceed in each case in the aggregate 2% of the Total
Enterprise Value of the CCIC Group, taken as a whole;
(v) sell, lease, license or otherwise dispose of or subject to any
Lien any properties or assets that are material, individually or in the
aggregate, to the CCIC Group, taken as a whole, except sales of inventory
and excess or obsolete assets or leases or licenses of properties in the
ordinary course of business consistent with past practice;
(vi) incur any Indebtedness or indemnity in respect of any
Indebtedness of any person, issue or sell any debt securities or any
options, warrants or other rights to acquire any debt securities of the
Company or any of its Subsidiaries, guarantee or give any
32
indemnity in respect of any debt securities of any person, enter into any
"keep well" or other agreement to maintain any financial statement
condition of another person or enter into any arrangement having the
economic effect of any of the foregoing, except for (A) short-term
borrowings incurred in the ordinary course of business not to exceed U.S.
$500,000 in the aggregate and (B) any such incurrence, issuance, sale,
guarantee or agreement under existing facilities (it being understood that
with respect to the contemplated further amendment and restatement of the
amended and restated credit facility with Key Corporate Capital Inc. and
PNC Bank, TDF agrees not to unreasonably withhold its approval of such
further amendment and restatement) which is not material to the CCIC Group,
taken as a whole;
(vii) grant, issue or redeem any mortgage or other security interest
other than in the ordinary course of business consistent with past
practice;
(viii) make, or announce to any person any proposal to make, any
change in the terms and conditions of appointment or employment of any of
its directors, senior executives or employees or appoint or employ any
person other than in the ordinary course of business consistent with past
practice or terminate any senior executive (except for good cause);
(ix) permit any of its Insurance Policies to lapse or do anything
which would make any Insurance Policy void or voidable;
(x) except for the VISI Transaction, enter into any transaction or
arrangement with an Affiliate or Associate of the Company;
(xi) take any action which would require the written consent of TDF
pursuant to Section 4.01(b) of the Governance Agreement;
(xii) authorize any of, or commit or agree, conditionally or
otherwise, to take any of, the foregoing actions; or
(xiii) do or omit to do or cause or allow to be done or omitted to be
done any act or thing which would result (or be reasonably likely to
result) in a Material Adverse Effect on the CCIC Group, taken as a whole.
33
SECTION 7.02. Conduct of Business of CTSH. Except for matters
----------------------------
contemplated by the Transaction Documents, from the date of this Agreement to
the Closing Date CTSH shall, and shall cause each of its Subsidiaries to,
conduct its business in accordance with the Existing CTSH Agreements.
SECTION 7.03. Consents. TDF, DFI (BV), CTSH, the CTSH Shareholders
---------
and the Company hereby consent to the Exchange and the other Transactions and
agree to use all reasonable best efforts to take or cause to be taken all
action, including without limitation, seeking to remove any legal prohibition to
consummate and make effective the Exchange, the other Transactions and the
Transaction Documents, and to do or cause to be done all things necessary,
proper and advisable under Applicable Laws and regulations, including without
limitation obtaining the Required Consents, to consummate and make effective the
Exchange, the other Transactions and the Transaction Documents (in each case,
with such additions, deletions or changes thereto or modifications thereof as
the authorized officers of the respective parties executing the same shall
approve (the execution thereof by such authorized officers to be conclusive
evidence of such authorized officers' approval of any such additions, deletions,
changes or modifications)).
SECTION 7.04. Consummation of the IPO. (a) Each of the Company,
------------------------
TDF, DFI (BV), CTSH and the CTSH Shareholders shall use all reasonable best
efforts to the extent within the control of such party to take or cause to be
taken all action and to do or cause to be done all things necessary, proper and
advisable under Applicable Laws and regulations to consummate and make effective
the IPO.
(b) The Company shall, upon reasonable prior notice or request to the
Company, provide each of TDF, CTSH, the CTSH Shareholders and the stockholders
of the Company with copies of drafts of the IPO Documents and the Company will
consider in its reasonable discretion any comments on such drafts of the IPO
Documents received from any of TDF, DFI (BV), CTSH, the CTSH Shareholders or the
stockholders of the Company.
SECTION 7.05. Stockholder Approval. The Company shall, as soon as
---------------------
practicable after the date hereof, establish a record date for a meeting or
action by written consent of the stockholders of the Company for the purpose of
obtaining the approval of such stockholders of the Company of the Transactions
and Transaction Documents other
34
than those Transactions and Transaction Documents for which approval was
obtained pursuant to Section 6.29.
SECTION 7.06. Press Releases. Except as may be required by
---------------
Applicable Law or court process, neither the Company nor TDF nor any of their
respective Affiliates, to the extent practicable, will issue any press release
or other public statements with respect to this Agreement, the Exchange or the
other Transactions or Transaction Documents prior to consulting with the other
party and providing such other party with the opportunity to review, comment
upon and approve any such press release or other public statements.
SECTION 7.07. Access to Books and Records. Until Closing, the
----------------------------
Company shall procure that DFI (BV), TDF, each CTSH Shareholder, its agents and
representatives are given access, upon reasonable prior notice to the Company,
to the properties and to the books and records of the CCIC Group and the Company
shall provide such information regarding the business and affairs of the CCIC
Group as DFI (BV), any CTSH Shareholder or TDF may reasonably request. Except
as required by Applicable Law, DFI (BV), TDF and each CTSH Shareholder will
hold, and will cause its officers, employees, accountants, counsel, financial
advisors and other representatives and controlled affiliates to hold, in
confidence any and all nonpublic information received from the Company or any of
its Subsidiaries, directly or indirectly, and to use such information solely for
purposes of effecting the Transactions contemplated by this Agreement and the
other Transaction Documents.
SECTION 7.08. Delivery of Other Agreements. Subject to the relevant
-----------------------------
conditions in Article VIII and Article IX being satisfied, each party to this
Agreement agrees to execute and deliver the Governance Agreement, the
Stockholders Agreement and the other Transaction Documents listed in Schedule
7.08 at the Closing to the extent such party is a party to any such agreements.
SECTION 7.09. Amendment and Adoption of Company Documents. (a) The
--------------------------------------------
Company shall use reasonable best efforts to (i) cause its Charter and By-laws
to be amended in accordance with the General Corporation Law of the State of
Delaware, in form and substance satisfactory to TDF and each CTSH Shareholder,
in order to permit the consummation of the Exchange and the other Transactions;
provided, however, that the Senior Preferred Stock and Senior Preferred Warrants
-------- -------
shall remain outstanding following the consummation of the Exchange and the IPO,
and (ii) adopt a customary shareholder "poison pill" rights plan (the
35
"Rights Plan") in form and substance satisfactory to TDF and each CTSH
-----------
Shareholder.
(b) Within fourteen days following the date of this Agreement, the
Company will cause to be submitted for approval to the Board of Directors of the
Company and/or for adoption by the stockholders of the Company, as required
under the General Corporation Law of the State of Delaware, the Amended and
Restated Charter, the Amended and Restated By-laws and the Rights Plan.
SECTION 7.10. Senior Preferred Consent. The Company will use its
-------------------------
reasonable best efforts to obtain as soon as reasonably practicable all
requisite consents (and any related amendment of the rights and preferences of
the holders of the Senior Preferred Stock and the Senior Preferred Warrants set
forth in the Charter) of the holders of the Senior Preferred Stock and the
Senior Preferred Warrants necessary to consummate and make effective the
Exchange, the other Transactions and the Transaction Documents without a breach
or violation of the terms in the Charter relating to the Senior Preferred Stock,
it being acknowledged that Senior Preferred Stock and Senior Preferred Warrants
shall remain outstanding following the consummation of the Exchange and the IPO.
SECTION 7.11. Conversion of Options. To the extent any CTSH
----------------------
Shareholder elects not to exercise any outstanding option to purchase CTSH
Shares prior to the Closing, the Company will, subject to Applicable Law, cause
any such CTSH Shareholders to exchange any and all options to purchase CTSH
Shares for options to purchase Company Shares in accordance with the terms and
conditions of the existing agreements among the Company, CTSH and such option
holders.
SECTION 7.12. 80%/20% Ownership at CTSH. Each of the Company and TDF
--------------------------
agrees to use its reasonable best efforts to cause the Company to own,
immediately after the Exchange, CTSH Shares possessing not more and not less
than 80%, and TDF to own, immediately after the Exchange, CTSH Shares possessing
not more and not less than 20%, of the total combined voting power of all
classes of CTSH Shares entitled to vote and not more and not less than 80%, in
the case of the Company, and not more and not less than 20%, in the case of TDF,
of the total number of shares of all other classes of CTSH Shares immediately
after the Exchange.
SECTION 7.13. Rights Plan. The Company shall take all action
------------
necessary to execute the Rights Agreement
36
and to issue the Rights prior to the consummation of the IPO.
SECTION 7.14. Redemption of Senior Preferred Stock. The Company will
-------------------------------------
use its reasonable best efforts to redeem 50% of the outstanding Senior
Preferred Stock prior to August 31, 1998 in accordance with the terms and
conditions of the Charter; provided that the IPO has been consummated prior to
--------
August 1, 1998.
SECTION 7.15. Access to Corporate Information; Confidentiality. The
-------------------------------------------------
Company shall afford and cause each of its Subsidiaries to afford to TDF
reasonable access prior to the termination of this Agreement to their respective
corporate books and records (including without limitation copies of the minutes
of the meetings of their respective boards of directors) and, without prejudice
to TDF's right under the Existing CTSH Shareholders Agreement, TDF shall have
the right to attend any meeting of the board of directors of the Company or any
Subsidiary of the Company as an observer upon reasonable prior notice to the
Corporate Secretary of each of the Company and any such Subsidiary. Except as
required by Applicable Law, TDF will hold, and will use its reasonable best
efforts to cause its officers, employees, accountants, counsel, financial
advisors and other representatives and controlled affiliates to hold, in
confidence any and all non-public information received from the Company or any
of its Subsidiaries, directly or indirectly, and to use such information solely
for purposes of effecting the transactions contemplated by this Agreement and
the other Transaction Documents.
SECTION 7.16. Tax Characterization. The parties to this Agreement
---------------------
agree to report the Exchange as a reorganization pursuant to Section
368(a)(1)(B) of the Code on all United States Federal, state and local income
and franchise tax filings and reports (to the extent a party is otherwise
required to file such a return or report) and, except if such inconsistent
position is required by Applicable Law (as demonstrated by an opinion of outside
United States legal counsel of recognized standing, which opinion is reasonably
satisfactory to the Company and each of the Company's U.S. stockholders, or
pursuant to a "determination" (within the meaning of Section 1313 of the Code))
will not take any position inconsistent with such characterization on any United
States Federal, state or local tax filing or report or before any United States
Federal, state or local taxing authority.
37
ARTICLE VIII
Conditions Precedent to Obligations
-----------------------------------
of the Company
--------------
Notwithstanding any other provisions of this Agreement, the obligation
of the Company to consummate the transactions contemplated hereby shall be
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions precedent, any of which may be waived by the Company:
SECTION 8.01. Accuracy of Representations and Warranties. The
-------------------------------------------
representations and warranties of DFI (BV) and each of the CTSH Shareholders
contained in this Agreement or in any certificate or other written instrument
delivered to the Company or its counsel pursuant hereto or in connection with
the Exchange and the other Transactions shall, when made and at and as of the
date of the preliminary prospectus relating to the IPO, be true and correct in
all material respects (provided that if the Closing shall not have occurred
prior to six weeks following such date, at and as of the Closing, if following
such six week period), except where the failure of such representations and
warranties to be so true and correct (without giving effect to any limitation as
to "materiality" or "Material Adverse Effect" set forth therein) is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on DFI (BV) or such CTSH Shareholder. The Company shall have received
certificates signed on behalf of each of DFI (BV) and each of the CTSH
Shareholders by their respective chief executive officers and chief financial
officers to such effect, which certificates shall be signed and acknowledged by
each of the Company and each of the CTSH Shareholders.
SECTION 8.02. Performance by TDF, DFI (BV) and the CTSH Shareholders.
-------------------------------------------------------
TDF, DFI (BV) and each of the CTSH Shareholders shall have duly performed and
complied in all material respects with all terms, agreements and conditions
required by this Agreement and the other Transaction Documents to be performed
or complied with by them prior to or at the Closing.
SECTION 8.03. Corporate Proceedings. All corporate and other
----------------------
proceedings of TDF, DFI (BV) and each of the CTSH Shareholders in connection
with this Agreement and the other Transaction Documents, and all documents and
instruments incident hereto, shall be reasonably satisfactory in substance and
in form to the Company and its counsel, and the Company and its counsel shall
have received
38
all such documents and instruments, or copies thereof, certified if requested,
as they shall have reasonably requested.
SECTION 8.04. Legal Proceedings. Without prejudice to the provisions
------------------
of Section 7.04 above, no provision of any Applicable Law or regulation and no
judgment, injunction, order or decree of a court of competent jurisdiction shall
restrain, prohibit or invalidate the Company's entering into, or the performance
by the Company of, the Exchange or the other Transactions or Transaction
Documents.
SECTION 8.05. Consents and Approvals. Without prejudice to the
-----------------------
provisions of Section 7.04 above, all Required Consents and all other
authorizations, approvals and waiting periods (if any) necessary in connection
with the consummation by TDF, DFI (BV) and the CTSH Shareholders of the Exchange
and the other Transactions shall have been obtained or satisfied, and any such
Required Consents, authorizations and approvals shall be in form and substance
reasonably satisfactory to the Company and its counsel.
SECTION 8.06. Completion of IPO. Each of the conditions to the
------------------
consummation of the IPO shall have been satisfied or waived, and the IPO Closing
shall be consummated substantially simultaneously with the Closing of the
Exchange.
SECTION 8.07. Conversion of Shares. Each of the Converting
---------------------
Stockholders shall have converted its shares and other securities of the Company
into shares of Common Stock.
SECTION 8.08. Stockholder Approval. The stockholders of the Company
---------------------
shall have approved the Transactions and Transaction Documents in accordance
with the Delaware General Corporation Law other than those Transactions and
Transaction Documents for which approval was obtained pursuant to Section 6.29.
SECTION 8.09. Senior Preferred Consent. The Company shall have
-------------------------
obtained all consents of the holders of the Senior Preferred Stock and the
Senior Preferred Warrants necessary to consummate and make effective the
Exchange, the other Transactions and the Transaction Documents without a breach
or violation of the terms of the Charter relating to the Senior Preferred Stock
and the Senior Preferred Warrants.
39
ARTICLE IX
Conditions Precedent to Obligations
-----------------------------------
of DFI (BV) and the CTSH Shareholders
-------------------------------------
Notwithstanding any other provision of this Agreement, the obligations
of DFI (BV) and each of the CTSH Shareholders to consummate the transactions
contemplated hereby shall be subject to the fulfillment, prior to or at the
Closing, of each of the following conditions precedent, any of which may be
waived by DFI (BV) and any of the CTSH Shareholders:
SECTION 9.01. Accuracy of Representations and Warranties. The
-------------------------------------------
representations and warranties of the Company contained in this Agreement or in
any certificate or written instrument delivered to DFI (BV) or any of the CTSH
Shareholders or their counsel pursuant hereto or in connection with the Exchange
or the other Transactions shall, when made and at and as of and by reference to
the circumstances then existing at the date of the preliminary prospectus
relating to the IPO, be true and correct in all material respects (provided that
--------
if the Closing shall not have occurred prior to six weeks following such date,
at and as of the Closing, if following such six week period), except where the
failure of such representations and warranties to be so true and correct
(without giving effect to any limitation as to "materiality" or "Material
Adverse Effect" set forth therein) is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on the CCIC Group,
taken as a whole. DFI (BV) and the CTSH Shareholders shall have received a
certificate signed on behalf of the Company by its chief executive officer and
chief financial officer to such effect, which certificate shall be signed and
acknowledged by each of TDF and DFI (BV) and each of the CTSH Shareholders.
SECTION 9.02. Performance by the Company and the Stockholders of the
------------------------------------------------------
Company. Each of the Company, CTSH, CTI and the stockholders of the Company
--------
shall have entered into the other Transaction Documents to which it is a party
and duly performed and complied in all material respects with all terms,
agreements and conditions required by this Agreement and the other Transaction
Documents to be performed or complied with by the Company, CTSH, CTI or the
stockholders of the Company prior to or at the Closing.
SECTION 9.03. Corporate Proceedings. All corporate and other
----------------------
proceedings of the Company and, if applicable, the stockholders of the Company,
in connection with this Agreement and the other Transaction Documents, and
40
all documents and instruments incident hereto, shall be reasonably satisfactory
in substance and in form to DFI (BV) and each of the CTSH Shareholders and their
respective counsel, and DFI (BV) and each of the CTSH Shareholders and their
respective counsel shall have received all such documents and instruments, or
copies thereof, certified if requested, as they shall have reasonably requested.
SECTION 9.04. Legal Proceedings. Without prejudice to the provisions
------------------
of Section 7.04 above, no provision of any Applicable Law or regulation and no
judgment, injunction, order or decree of a court of competent jurisdiction shall
restrain, prohibit or invalidate DFI (BV)'s or any of the CTSH Shareholder's
entering into, or the performance by DFI (BV) or any of the CTSH Shareholders
of, the Exchange or the other Transactions or the Transaction Documents.
SECTION 9.05. Consents and Approvals. Without prejudice to the
-----------------------
provisions of Section 7.04 above, all other Required Consents, authorizations,
approvals and waiting periods (if any) necessary in connection with the
consummation by the Company of the Exchange and the other Transactions, shall
have been obtained or satisfied, and any such consents, authorizations and
approvals shall be in form and substance reasonably satisfactory to TDF and each
of the CTSH Shareholders and its counsel.
SECTION 9.06. Completion of IPO. Each of the conditions to the
------------------
consummation of the IPO shall have been satisfied or waived, and the IPO Closing
shall be consummated substantially simultaneously with the Closing of the
Exchange.
SECTION 9.07. Conversion of Shares. Each of the Converting
---------------------
Stockholders shall have converted its shares and the other securities of the
Company into shares of Common Stock.
SECTION 9.08. Stockholder Approval. The stockholders of the Company
---------------------
shall have approved the Transactions and Transaction Documents in accordance
with the Delaware General Corporation Law other than those Transactions and
Transaction Documents for which approval was obtained pursuant to Section 6.29.
SECTION 9.09. Senior Preferred Consent. The Company shall have
-------------------------
obtained all consents of the holders of the Senior Preferred Stock and the
Senior Preferred Warrants necessary to consummate and make effective the
Exchange, the other Transactions and the Transaction Documents without a
41
breach or violation of the terms in the Charter relating to the Senior Preferred
Stock and the Senior Preferred Warrants.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Survival of Warranties. None of the covenants,
-----------------------
agreements, representations and warranties of the parties contained herein or in
any certificate or other document delivered pursuant hereto or in connection
herewith shall survive the Closing, other than the representations and
warranties of the Company set forth in Section 6.03 and Section 6.31 and the
indemnity set forth in Section 10.17, and the representations and warranties of
DFI (BV), TDF and each of the CTSH Shareholders set forth in Section 5.02.
SECTION 10.02. Reasonable Efforts; Further Actions. The parties
------------------------------------
hereto each will use all reasonable best 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 the IPO and to
consummate and make effective the transactions contemplated by this Agreement
and the other Transaction Documents.
SECTION 10.03. Consents. The parties hereto will cooperate with each
---------
other in filing any necessary applications, reports or other documents with,
giving any notices to, and seeking any Required Consents from, all regulatory
bodies and all governmental agencies and authorities and all third parties as
may be required in connection with the consummation of the Exchange and the
other Transactions.
SECTION 10.04. Amendment and Waiver. This Agreement may not be
---------------------
amended, supplemented or discharged, and no provision hereof may be modified or
waived, except by the mutual agreement of the parties hereto. 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 10.05. 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
42
party to sign each counterpart so long as every party has signed at least one
counterpart.
SECTION 10.06. 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.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: President
with a copy to: Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to TDF or TeleDiffusion de France
DFI (BV): International S.A.
▇▇ ▇▇▇ ▇'▇▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇ & Overy
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to CTSH: Castle Transmission Services
(Holdings) Ltd.
Warwick Technology ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attn: Managing Director
43
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
If to any CTSH
Shareholder: At the address of such CTSH
Shareholder listed on
Schedule I
All such notices, requests, demands, waivers and communications 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
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 10.07. 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. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned, directly or indirectly, including, without limitation, by operation of
law, by any party hereto without the prior written consent of the other parties
hereto.
SECTION 10.08. Entire Agreement. This Agreement, the other
-----------------
Transaction Documents and the schedules, exhibits and other documents and
agreements referred to herein or therein or delivered pursuant hereto or thereto
which form a part hereof or thereof constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties or any
of them with respect to the subject matter hereof.
44
SECTION 10.09. No Third Party Beneficiaries. This Agreement shall be
-----------------------------
binding upon and inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns, and, except with respect to the
rights of the stockholders of the Company under Section 10.10, nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits, claims, liabilities, causes of action or remedies
of any nature whatsoever under or by reason of this Agreement.
SECTION 10.10. Expenses. Each of the parties hereto shall pay its
---------
own costs and expenses incurred in connection with this Agreement, the other
Transaction Documents and the Transactions, irrespective of when incurred.
SECTION 10.11. 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; provided, however, that the terms and conditions
-------- -------
of this Agreement relating to the internal affairs of the Company shall be
construed in accordance with and governed by the law of the State of Delaware.
(b) Each of the parties to this Agreement hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
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, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Each of the parties hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
45
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each of the parties to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.06. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.12. Waiver of Jury Trial. Each party hereto hereby
---------------------
waives, to the fullest extent permitted by Applicable Law, any right it may have
to a trial by jury in any legal proceeding directly or indirectly arising out of
or relating to this Agreement or the transactions contemplated hereby or thereby
(whether based on contract, tort or any other theory). Each party hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
agreement by, among other things, the mutual waivers and certifications in this
Section.
SECTION 10.13. Article and Section Headings. The article, section
-----------------------------
and other headings contained in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this Agreement.
SECTION 10.14. Termination. This Agreement may be terminated at any
------------
time prior to the Closing by the mutual consent of the parties hereto and shall
terminate if the Closing shall not have been consummated by October 31, 1998.
SECTION 10.15. 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 hereto that, so long as permitted by Applicable Law,
the parties hereto 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 10.16. Severability. Should any provision of this Agreement
-------------
for any reason be declared invalid or unenforceable, such decision shall not
affect the
46
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 10.17. Indemnification. The Company agrees to indemnify and
----------------
hold harmless TDF and DFI (BV) against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Exchange Act or the Securities Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise in connection with
a registration statement filed, or a preliminary or final prospectus delivered,
in connection with the IPO under Section 15 of the Securities Act and Section
20(a) of the Exchange Act and TDF or DFI (BV) being deemed a "controlling
person" thereunder.
IN WITNESS WHEREOF, each party hereto has executed this Agreement as
of the day and year first above written.
CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD,
by
___________________________
Name:
Title:
CROWN CASTLE INTERNATIONAL CORP.,
by
____________________________
Name:
Title:
BERKSHIRE INVESTORS, LLC,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
a Managing Member
DIGITAL FUTURE INVESTMENTS B.V.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
TELEDIFFUSION DE FRANCE
INTERNATIONAL S.A.,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman
CANDOVER INVESTMENTS PLC,
by /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
CANDOVER (TRUSTEES) LIMITED,
by /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
CANDOVER PARTNERS LIMITED (a
company incorporated in
England and Wales as general
partner of the Candover 1994
UK Limited Partnership),
by /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
CANDOVER PARTNERS LIMITED (a
company incorporated in
England and Wales as general
partner of the Candover 1994
UK No. 2 Limited
Partnership),
by /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
CANDOVER PARTNERS LIMITED (a
company incorporated in
England and Wales as general
partner of the Candover 1994
US No. 1 Limited
Partnership),
by /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
CANDOVER PARTNERSHIP LIMITED (a
company incorporated in
England and Wales as general
partner of the Candover 1994
UK No. 2 Limited
Partnership),
by /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇ ▇. ▇▇▇,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
CROWN CASTLE INTERNATIONAL CORP.,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.,
trustee of the ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇. Castle
Transmission Trust,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Trustee
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, trustee
of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Castle Transmission Trust,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-In-Fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
trustee of the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Castle
Transmission Trust,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-In-Fact
SCHEDULE I
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Perference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
Digital Future Investments
B.V.
▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
International S.A.
▇▇ ▇▇▇ ▇'▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ 15
France
Fax: ###-##-####
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,620,000 1,618,380,000 1,620,000,000 2,268,000
Berkshire Fund IV, Limited
Partnership
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ 1,147,728 1,146,579,660 1,147,727,388 1,606,818
-----------------------
/1/ Number of CTSH Shares after adjustment for CTSH Shares acquired by
Digital Future Investments B.V. pursuant to the Candover-Bershire Agreement.
2
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Perference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
Berkshire Investors LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ 114,772 114,657,840 114,772,612 160,682
Candover Group (total number
----------------------------
of shares) 1,618,600 1,616,981,400 1,618,600,000 2,266,040
----------
Candover Investments, plc
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 326,267 362,156,477 362,482,744 507,476
Candover (Trustees) Limited
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 36,252 0 36,252 51
Candover Partners Limited
(as general partner of the
Candover 1994 UK Limited
Partnership)
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 657,258 656,600,288 657,257,546 920,161
/1/ number of CTSH Shares after adjustment for CTSH Shares acquired by Digital
Future Investments B.V. pursuant to the Candover-Berkshire Agreement.
3
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Preference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
Candover Partners Limited
(as general partner of the
Candover 1994 UK No. 2
Limited Partnership)
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 178,116 177,937,877 178,115,993 249,362
Candover Partners Limited
(as general partner of the
Candover 1994 US No. 1
Limited Partnership)
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 31,901 31,869,068 31,900,969 44,661
Candover Partners Limited
(as general partner of the
Candover 1994 US No. 2
Limited Partnership)
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 388,806 388,417,690 388,806,496 544,329
▇▇▇▇▇▇ ▇▇▇▇▇
Castle Transmission
International LTD.
Warwick Technology ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 10,000 9,990,000 10,000,000 14,000
-----------------------
/1/ Number of CTSH Shares after adjustment for CTSH Shares acquired by
Digital Future Investments B.V. pursuant to the Candover-Berkshire Agreement.
4
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Perference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 15,000 14,985,000 15,000,000 21,000
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 10,000 9,990,000 10,000,000 14,000
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 10,000 9,990,000 10,000,000 14,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Icknield House
Oversley Farm
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 5,000 4,995,000 5,000,000 7,000
▇▇▇▇ ▇. ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 5,000 4,995,000 5,000,000 7,000
-----------------------
/1/ Number of CTSH Shares after adjustment for CTSH Shares acquired by
Digital Future Investments B.V. pursuant to the Candover-Bershire Agreement.
5
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Perference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 5,000 4,995,000 5,000,000 7,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
"Holmwood"
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 5,000 4,995,000 5,000,000 7,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 5,000 4,995,000 5,000,000 7,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 4,000 3,996,000 4,000,000 5,600
-----------------------
/1/ Number of CTSH Shares after adjustment for CTSH Shares acquired by
Digital Future Investments B.V. pursuant to the Candover-Bershire Agreement.
6
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Preference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
2 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 4,000 3,996,000 4,000,000 5,600
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 4,000 3,996,000 4,000,000 5,600
D. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 4,000 3,996,000 4,000,000 5,600
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇) 4,000 3,996,000 4,000,000 5,600
-----------------------
/1/ Number of CTSH Shares after adjustment for CTSH Shares acquired by
Digital Future Investments B.V. pursuant to the Candover-Berkshire Agreement.
7
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Preference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.,
trustee of the ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇. Castle
Transmission Trust/2/
Crown Castle International
Corp.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 4,996 4,991,004 4,996,000 6,994
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
trustee of the ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Castle Transmission
Trust/2/
Crown Castle International
Corp.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 3,333 3,329,667 3,333,000 4,666
---------------------------------
/2/▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. votes the shares of CTSH stock beneficially held by the
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. Castle Transmission Trust, the ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Castle Transmission Trust and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Castle Transmission
Trust. The trust hold the beneficial interest in the CTSH stock as indicated but
legal title is in the name of trust account established by ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.'s
father. Legal title is in the process of being transferred.
8
CTSH SHAREHOLDERS
-----------------
NUMBER OF CTSH SHARES/1/
CTSH CTSH Preference Total CTSH Shares Shares in CCIC
---- --------------- ----------------- ---------------
Ordinary Shares Post Conversion
-------- ------ ---------------
CTSH SHAREHOLDER Shares
---------------- ------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
trustee of the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Castle
Transmission Trust/2/
Crown Castle International
Corp.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 1,671 1,669,329 1,671,000 2,340
========= ========== ========== ========== ==========
Total 4,601,100 4,596,498,900 4,601,100,000 6,441,540
-----------------------
/2/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. votes the shares of CTSH stock beneficially held by
the ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. Castle Transmission Trust, the ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Castle Transmission Trust and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Castle
Transmission Trust. The trust hold the beneficial interest in the CTSH stock as
indicated but legal title is in the name of the trust account established by ▇▇▇
▇. ▇▇▇▇▇▇, ▇▇.'s father. Legal title is in the process of being transferred.
SCHEDULE III
REQUIRED CONSENTS
-----------------
1. The delivery of all notices required by law or regulation in relation to
the Transactions and the expiration of all waiting or notice periods in
relation to such notices;
2. The receipt of all governmental and other regulatory consents or
notifications required in relation to the Transactions;
3. The prior written consent of the BBC to the extent required in relation to
the transaction under Analogue Transmission Contract, the Digital
Transmission Contract, the Commitment Agreement (each of the foregoing as
defined in the Governance Agreement) and any other agreement containing
substantially similar restrictions and any agreement amending or replacing
the same; and
4. The receipt of any consent required under the Finance Documents as defined
in the CTSH Shareholders Agreement in relation to the transaction or any
agreement (whether or not with the same banks) amending, replacing or
refinancing (in whole or in part) the same or any other agreement providing
finance to the CTSH Group.