EXHIBIT 1.1
25,000,000 SHARES
CROWN CASTLE INTERNATIONAL CORP.
COMMON STOCK
U.S. UNDERWRITING AGREEMENT
---------------------------
August __, 1998
Lehman Brothers Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Smith Barney Inc.
As Representatives of the several
U.S. Underwriters named in Schedule 1,
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Crown Castle International Corp., a Delaware corporation (the
"Company") and Robert A. Crown, Barbara A. Crown, Robert A. Crown and PNC Bank,
Delaware, Trustees of the Robert A. Crown Grantor Retained Annuity Trust and
Barbara A. Crown and PNC Bank, Delaware, Trustees of the Barbara A. Crown
Grantor Retained Annuity Trust (collectively, the "Crown Selling Stockholders")
propose to sell an aggregate of 25,000,000 shares (the "Firm Stock") of the
Company's Common Stock, par value $.01 per share (the "Common Stock"). Of the
25,000,000 shares of the Firm Stock, 21,250,000 are being sold by the Company
and 3,750,000 by the Crown Selling Stockholders. It is understood that, subject
to the conditions hereinafter stated, 25,000,000 shares of Common Stock will be
sold to the several U.S. underwriters named in Schedule 1 hereto (the "U.S.
Underwriters") in connection with the offering and sale of such Common Stock in
the United States and Canada to United States and Canadian Persons (as such
terms are defined in the Agreement Between U.S. Underwriters and International
Managers) (as defined). In addition, certain executive officers of the Company
named in Schedule 2 hereto (the "Executive Selling Stockholders"), certain non-
executive employee stockholders of the Company named in Schedule 2 hereto (the
"Employee Selling Stockholders") and certain financial sponsor stockholders,
certain other stockholders who are affiliates of such financial sponsors and
certain directors of the Company named on Schedule 2 hereto (collectively, the
"Sponsor Selling Stockholders" and, together with the Executive Selling
Stockholders and the Employee Selling Stockholders, the "Option Selling
Stockholders") propose to grant to the U.S. Underwriters named in Schedule 1
hereto (the "U.S. Underwriters") an option to purchase up to an additional
4,687,500 shares of the Common Stock on the terms and for the purposes set forth
in Section 5 (the "Option Stock"). This is to confirm the agreement concerning
the purchase by the U.S. Underwriters of the Firm Stock from the Company and the
Crown Selling Stockholders and of the Option Stock, if purchased, from the
Option Selling Stockholders. The Firm Stock and the Option Stock, if purchased,
are hereinafter collectively called the "Stock," and the Crown Selling
Stockholders and the Option Selling Stockholders are hereinafter collectively
referred to as the "Selling Stockholders."
It is understood by all parties that the Company is concurrently
entering into an agreement dated the date hereof (the "International
Underwriting Agreement") providing for the sale by the Company of an aggregate
of 6,250,000 shares of Common Stock (the "International Stock") through
arrangements with certain underwriters outside the United States and Canada (the
"International Managers"), for whom Lehman Brothers International (Europe),
Credit Suisse First Boston (Europe) Limited, Goldman Sachs International and
Smith Barney Inc. are acting as lead managers. The U.S. Underwriters and the
International Managers simultaneously are entering into an agreement between the
U.S. and international underwriting syndicates (the "Agreement Between U.S.
Underwriters and International Managers") which provides for, among other
things, the transfer of shares of Common Stock between the two syndicates. Two
forms of prospectus are to be used in connection with the offering and sale of
shares of Common Stock contemplated by the foregoing, one relating to the Stock
and the other relating to the International Stock. The latter form of
prospectus will be identical to the former except for certain substitute pages
as included in the registration statement and amendments thereto referred to
below. Except as used in Sections 5, 6, 7, 16, 17 and 18 herein, and except as
the context may otherwise require, references herein to the Stock shall include
all the shares of the Common Stock which may be sold pursuant to either this
Agreement or the International Underwriting Agreement, and references herein to
any prospectus, whether in preliminary or final form, and whether as amended or
supplemented, shall include both the U.S. and the international versions
thereof.
1. Representations, Warranties And Agreements Of The Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 and any amendments
thereto with respect the Stock has (i) been prepared by the Company in
conformity with the requirements of the United States Securities Act
of 1933 (the "Securities Act") and the rules and regulations (the
"Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under
the Securities Act. Copies of such registration statement and the
amendments thereto have been delivered by the Company to you as the
representatives (the "Representatives") of the U.S. Underwriters. As
used in this Agreement, "Effective Time" means the date and the time
as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereto, before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration
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statement, as amended at the Effective Time, including all information
contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations in accordance with Section
8 hereof and deemed to be a part of the registration statement as of
the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules
and Regulations and including any registration statement registering
additional shares of Common Stock filed with the Commission pursuant
to Rule 462(b) of the Rules and Regulations; and "Prospectus" means
such final prospectus, as first filed with the Commission pursuant to
paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use
of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform, in all respects to the
requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of any U.S.
Underwriter or International Manager specifically for inclusion
therein.
(c) The industry-related and tower-related data and estimates
included in the Prospectus are based on or derived from sources which
the Company believes to be reliable and accurate.
(d) The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of Delaware with all
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration
or qualification, except where the failure so to register or qualify
or to be in good standing would not have a material adverse effect on
the condition (financial or other), business, prospects, properties or
results of operations of the Company, Crown Communication, Inc.
("CCI"), Crown Network Systems, Inc. ("Network"), Crown Mobile
Systems, Inc. ("Mobile"), TEA Group Incorporated ("TEA"), Spectrum
Site Management Corporation ("Spectrum"), TeleStructures, Inc.
("TeleStructures"), Crown Castle International Corp. de Puerto Rico
("CCIC
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(PR)"), Crown Communication New York, Inc. ("CCNY") and Castle
Transmission Services (Holdings) Ltd. ("CTSH"), Castle Transmission
International, Ltd. ("CTI") and Castle Transmission (Finance) Plc
("CTF" and, together with CCI, Network, Mobile, TEA, Spectrum,
TeleStructures, CCIC (PR), CCNY, CTSH, CTI and CTF, the
"Subsidiaries") taken as a whole (a "Material Adverse Effect").
(e) None of the subsidiaries of the Company (other than CCI and,
following the consummation of the transactions contemplated hereby,
CTI (collectively, the "Significant Subsidiaries")) is a "significant
subsidiary," as such term is defined in Rule 405 of the Rules and
Regulations.
(f) CTI is a corporation duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation with all
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly registered and qualified to conduct its business in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing would not have a Material Adverse Effect.
(g) As of the First Delivery Date (as defined), the Company will
have an authorized capitalization as set forth in the Prospectus, and
all of the issued shares of capital stock of the Company have been
duly and validly authorized and issued, are fully paid and non-
assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and (except for
directors' qualifying shares and except as set forth in the
Registration Statement (including the exhibits thereto) with respect
to shares subject to liens under the Company's Senior Credit Facility)
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(h) The unissued shares of the Stock to be issued and sold by the
Company to the U.S. Underwriters hereunder and to the International
Managers under the International Underwriting Agreement have been duly
and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully
paid and non-assessable; and the Stock will conform to the description
thereof contained in the Prospectus.
(i) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement.
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(j) The application for the inclusion of the Stock on the NASDAQ
National Market System has been approved, subject only to official
notice of issuance and evidence of satisfactory distribution.
(k) This Agreement has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution
and delivery by the U.S. Underwriters, constitutes the valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time
in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether in a proceeding in equity or at
law).
(l) The execution, delivery and performance of this Agreement and
the International Underwriting Agreement by the Company and the
consummation of the transactions contemplated hereby, and the
transactions described in the Prospectus under the caption "The Roll-
Up" (such transactions are herein collectively called the "Roll-Up")
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or (with the giving of notice or the lapse
of time or both) constitute a default under, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries is bound or to
which any of the properties or assets of the Company or any of the
Subsidiaries is subject, (ii) the provisions of the charter, by-laws
or other constitutive documents of the Company or any of the
Subsidiaries or (iii) any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their properties or
assets, except in the cases of clause (i) or (iii), such breaches,
violations or defaults that in the aggregate would not have a Material
Adverse Effect; and except for (A) the registration of the Stock under
the Securities Act and (B) such consents, approvals, authorizations,
registrations or qualifications (1) as may be required under the
Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Stock by the U.S.
Underwriters and the International Managers, (2) as may have already
been obtained or made and (3) the failure to obtain or make would not,
individually or in the aggregate, have a Material Adverse Effect, no
consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or the International Underwriting Agreement by the Company and the
consummation of the transactions contemplated hereby and in the Roll-
Up.
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(m) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company or any of
the Subsidiaries and any person granting such person the right to
require the Company or any of the Subsidiaries to file a registration
statement under the Securities Act with respect to any securities of
the Company and the Subsidiaries owned or to be owned by such person
or to require the Company or any of the Subsidiaries to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company or any of the Subsidiaries
under the Securities Act.
(n) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulation D or Regulation S of, the Securities
Act other than shares issued pursuant to employee benefit plans or
other employee compensation plans or pursuant to outstanding options,
rights or warrants.
(o) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, except as
described or contemplated in the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any adverse change, or any development involving a
prospective adverse change, which individually or in the aggregate has
had or would have a Material Adverse Effect.
(p) The consolidated historical and pro forma financial
statements, together with the related notes thereto filed as part of
the Registration Statement or included in the Prospectus comply as to
form in all material respects with the requirements of Regulation S-X
under the Act applicable to registration statements on Form S-1 under
the Act. Such historical financial statements fairly present the
financial position of the Company at the respective dates indicated
and the results of operations and cash flows for the respective
periods indicated, in each case in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout such
periods. Such pro forma financial statements have been prepared on a
basis consistent with such historical statements, except for the pro
forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and in good faith and present fairly the
pro forma position, results of operations and the other information
purported to be shown therein at the respective dates or the
respective periods therein specified. The other financial and
statistical information and data filed as part of the
6
Registration Statement or included in the Prospectus, historical and
pro forma, are, in all material respects, fairly presented and
prepared on a basis consistent with such financial statements and the
books and records of the Company.
(q) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and
who have delivered the initial letter referred to in Section 14(k)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations during the periods
covered by the financial statements on which they reported contained
in the Prospectus.
(r) The Company and each of the Subsidiaries has good and
indefeasible title to all property (real and personal) described in
the Prospectus as being owned by it, free and clear of all liens,
claims, security interests or other encumbrances except such as are
described in the Prospectus, and all the material property described
in the Prospectus as being held under lease by the Company and any
such Subsidiary is held by it under valid, subsisting and enforceable
leases, with only such exceptions as would not in the aggregate have a
Material Adverse Effect. In addition, except as described in the
Prospectus, the consummation of the transactions contemplated by this
Agreement and the Roll-Up will not give rise to any third party rights
of first refusal under any agreement as to which the Company and any
of the Subsidiaries or any of their property or assets may be subject.
(s) The Company and each of the Significant Subsidiaries carry,
or are covered by, insurance in such amounts and covering such risks
as is adequate for the conduct of its businesses and the value of its
properties and as is customary for companies engaged in similar
businesses in similar industries.
(t) The Company and each of the Significant Subsidiaries has such
permits, licenses, franchises, certificates of need and other
approvals or authorizations of any governmental or regulatory
authority ("Permits"), including, without limitation, any permits
required by the Federal Communications Commission ("FCC"), the Federal
Aviation Administration ("FAA") or the Office of Telecommunications
("OFTEL"), as are necessary under applicable law to own their
respective properties and to conduct their respective businesses in
the manner described in the Prospectus, except to the extent that the
failure to have such Permits would not have a Material Adverse Effect.
The Company and the Significant Subsidiaries have fulfilled and
performed in all material respects, all their respective obligations
with respect to the Permits, and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Prospectus and except to the
extent that any such revocation or
7
termination would not have a Material Adverse Effect. Except as
described in the Prospectus, none of the Permits contains any
restriction that has not previously been satisfied and that is
materially burdensome to the Company or any of the Significant
Subsidiaries.
(u) For each existing tower of the Company not yet registered
with the FCC where registration will be required, the FCC's grant of
an application for registration of such tower will not have a
significant environmental effect as defined under Section 1.1307(a) of
the FCC's rules.
(v) The consummation of the transactions contemplated by this
Agreement shall not cause any third party to have any rights of first
refusal with respect to the acquisition of towers under any Material
Agreement that has not already been described in the Prospectus as to
which the Company and any of the Significant Subsidiaries or any of
their property or assets may be subject.
(w) The Company and each of the Significant Subsidiaries owns or
possesses all patents, trademarks, trademark registration, service
marks, service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as
being owned by any of them or necessary for the conduct of their
respective businesses, and neither the Company nor any of the
Significant Subsidiaries is aware of any claim to the contrary or any
challenge by any other person to the rights of the Company or any of
the Significant Subsidiaries with respect to such rights that, if
determined adversely to the Company or any such Significant
Subsidiary, would in the aggregate have a Material Adverse Effect.
(x) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any
Subsidiary or to which any of their respective properties is subject,
that are not disclosed in the Prospectus and which are reasonably
likely to have a Material Adverse Effect. The descriptions in the
Prospectus of all agreements, contracts, indentures, leases or other
instruments are accurate in all material respects and fairly present
the information purported to be described therein.
(y) Neither the Company nor any of the Subsidiaries is involved
in any strike, job action or labor dispute with any group of
employees, and, to the knowledge of the Company and the Subsidiaries,
no such action or dispute is threatened.
(z) The Company and each of the Subsidiaries are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in
8
ERISA) for which the Company would have any liability; the Company has
not incurred and does not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(aa) The Company and each of the Subsidiaries have filed all
federal, state and local income and franchise tax returns required to
be filed through the date hereof and have paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company or
any of the Subsidiaries nor does the Company or any of the
Subsidiaries have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of the Subsidiaries, would
have a Material Adverse Effect.
(bb) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities, (ii) incurred any liability or obligation, direct or
contingent, or entered into any transaction, in each case not in the
ordinary course of business which is material to the Company and its
Subsidiaries taken as a whole or (iii) declared or paid any dividend
on its capital stock (excluding payment in lieu of fractional shares
upon conversion of certain senior preferred convertible stock of the
Company).
(cc) The Company (i) makes and keeps accurate books and records
and (ii) maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements in conformity with GAAP and to maintain accountability for
assets, (C) access to its assets is permitted only in accordance with
management's general or specific authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(dd) Neither the Company nor any of the Subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or (iii)
is in violation in any
9
material respect of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject
or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to
the ownership of its property or to the conduct of its business.
(ee) Neither the Company nor any of the Subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of the Subsidiaries, has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is
in violation of any provision of the Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(ff) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company or any of the Subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any
of the property now or previously owned or leased by the Company or
any of the Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate, a Material
Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of the
Subsidiaries or with respect to which the Company or any of the
Subsidiaries has knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the
aggregate, a Material Adverse Effect; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes"
shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(gg) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission promulgated thereunder.
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(hh) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Representations, Warranties and Agreements of the Crown Selling
Stockholders. Each of the Crown Selling Stockholders represents, warrants and
agrees that:
(a) Such Crown Selling Stockholder has, and immediately prior to
the First Delivery Date (as defined in Section 7 hereof) such Crown
Selling Stockholder will have, good and valid title to the shares of
Stock to be sold by such Crown Selling Stockholder hereunder on such
date, free and clear of all liens, encumbrances, equities or claims;
and upon delivery of such shares and payment therefor pursuant hereto
and thereto, good and valid title to such shares, free and clear of
all liens, encumbrances, equities or claims, will pass to the several
U.S. Underwriters.
(b) Such Crown Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement") with the Company, as
custodian (the "Custodian"), for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a
commercial bank or trust company having an office or correspondent in
the United States or a member firm of the New York or American Stock
Exchanges) representing the shares of Stock to be sold by such Crown
Selling Stockholder hereunder.
(c) Such Crown Selling Stockholder has duly and irrevocably
executed and delivered a power of attorney (the "Power of Attorney")
appointing the Custodian and one or more other persons, as attorneys-
in-fact, with full power of substitution, and with full authority
(exercisable by any one or more of them) to execute and deliver this
Agreement and to take such other action as may be necessary or
desirable to carry out the provisions hereof on behalf of such Crown
Selling Stockholder.
(d) Such Crown Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement; the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by such
Crown Selling Stockholder and the consummation by such Crown Selling
Stockholder of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Crown Selling Stockholder is a party or by
which such Crown Selling Stockholder is bound or to which any of the
property or assets of such Crown Selling Stockholder is subject, nor
will such actions result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over such Crown Selling
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Stockholder or the property or assets of such Crown Selling
Stockholder; and, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws in connection with
the purchase and distribution of the Stock by the U.S. Underwriters,
no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by such
Crown Selling Stockholder and the consummation by such Crown Selling
Stockholder of the transactions contemplated hereby and thereby.
(e) Such Crown Selling Stockholder has no actual knowledge (as
defined in Section 15(g) hereof) of (i) any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus
or in any amendment or supplement thereto, in each case as of its date
or as of the First Delivery Date or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement
thereto, in each case as of its date or as of the First Delivery Date,
any material fact required to be stated therein or necessary to make
the statements therein not misleading.
(f) Such Crown Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the shares
of the Stock.
3. Representations, Warranties and Agreements of the Executive Selling
Stockholders. Each Executive Selling Stockholder, severally and not jointly,
represents, warrants and agrees as to such Executive Selling Stockholder that:
(a) Such Executive Selling Stockholder will have, immediately
prior to the Second Delivery Date (as defined in Section 7 hereof),
good and valid title to the shares of Stock to be sold by such
Executive Selling Stockholder hereunder on such date, free and clear
of all liens, encumbrances, equities or claims; and upon delivery of
such shares and payment therefor pursuant hereto and thereto, good and
valid title to such shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several U.S. Underwriters.
(b) Such Executive Selling Stockholder has placed in custody
under a custody agreement (the "Custody Agreement") with the Company,
as custodian (the "Custodian"), for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a
commercial bank or trust company having an office or correspondent in
the United States or a member firm of the New York
12
or American Stock Exchanges) or an irrevocable exercise notice of
options representing the shares of Stock to be sold by such Executive
Selling Stockholder hereunder.
(c) Such Executive Selling Stockholder has duly and irrevocably
executed and delivered a power of attorney (the "Power of Attorney")
appointing one or more persons as attorneys-in-fact, with full power
of substitution, and with full authority (exercisable by any one or
more of them) to execute and deliver this Agreement and to take such
other action as may be necessary or desirable to carry out the
provisions hereof on behalf of such Executive Selling Stockholder.
(d) Such Executive Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement; the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by such
Executive Selling Stockholder and the consummation by such Executive
Selling Stockholder of the transactions contemplated hereby and
thereby will not result in a material breach or violation of any of
the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
similar agreement or instrument to which such Executive Selling
Stockholder is a party or by which such Executive Selling Stockholder
is bound or to which any of the property or assets of such Executive
Selling Stockholder is subject, nor will such actions result in any
material violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over such
Executive Selling Stockholder or the property or assets of such
Executive Selling Stockholder; and, except for (A) the registration of
the Stock under the Securities Act and (B) such consents, approvals,
authorizations, registrations or qualifications (1) as may be required
under the Exchange Act and applicable state or foreign securities laws
in connection with the purchase and distribution of the Stock by the
U.S. Underwriters, (2) as may have already been obtained or made and
(3) the failure to obtain or make would not, individually or in the
aggregate, have a material adverse effect on such Selling
Stockholder's ability to transfer and sell its Option Stock to the
U.S. Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by such
Executive Selling Stockholder and the consummation by such Executive
Selling Stockholder of the transactions contemplated hereby and
thereby.
(e) Such Executive Selling Stockholder has no reason to believe
that the representations and warranties of the Company contained in
Section 1 hereof are not materially true and correct, is familiar with
the Registration Statement and the Prospectus (as amended or
supplemented) and has no knowledge of any material fact, condition or
information not disclosed in the Registration Statement, as of
13
the effective date, or the Prospectus (or any amendment or supplement
thereto), as of the applicable filing date, which has adversely
affected or may adversely affect the business of the Company and is
not prompted to sell shares of Common Stock by any information
concerning the Company which is not set forth in the Registration
Statement and the Prospectus.
(f) Such Executive Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any shares
of Common Stock or any security convertible into or exchangeable or
exercisable for shares of Common Stock to facilitate the sale or
resale of the shares of the Stock.
4. Representations, Warranties and Agreements of the Employee Selling
Stockholders and the Sponsor Selling Stockholders. Each Employee Selling
Stockholder and each Sponsor Selling Stockholder, severally and not jointly,
represents, warrants and agrees as to such Employee Selling Stockholder or
Sponsor Selling Stockholder, as the case may be, that:
(a) Such Selling Stockholder has, and immediately prior to the
Second Delivery Date (as defined in Section 7 hereof) such Selling
Stockholder will have, good and valid title to the shares of Stock to
be sold by such Selling Stockholder hereunder on such date, free and
clear of all liens, encumbrances, equities or claims; and upon
delivery of such shares and payment therefor pursuant hereto and
thereto, good and valid title to such shares, free and clear of all
liens, encumbrances, equities or claims, will pass to the several U.S.
Underwriters.
(b) Such Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement") with the Company, as
custodian (the "Custodian"), for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a
commercial bank or trust company having an office or correspondent in
the United States or a member firm of the New York or American Stock
Exchanges) representing the shares of Stock to be sold by such Selling
Stockholder hereunder.
(c) Such Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney") appointing
one or more persons as attorneys-in-fact, with full power of
substitution, and with full authority (exercisable by any one or more
of them) to execute and deliver this Agreement and to take such other
action as may be necessary or desirable to carry out the provisions
hereof on behalf of such Selling Stockholder.
(d) Such Selling Stockholder has full right, power and authority
to enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement,
the Power of Attorney and the Custody Agreement by such Selling
Stockholder and the consummation
14
by such Selling Stockholder of the transactions contemplated hereby
and thereby will not result in a material breach or violation of any
of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
similar agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of
the property or assets of such Selling Stockholder is subject, nor
will such actions result in any material violation of any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the property
or assets of such Selling Stockholder; and, except for (A) the
registration of the Stock under the Securities Act and (B) such
consents, approvals, authorizations, registrations or qualifications
(1) as may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Stock by the U.S. Underwriters, (2) as may have
already been obtained or made and (3) the failure to obtain or make
would not, individually or in the aggregate, have a material adverse
effect on such Selling Stockholder's ability to transfer and sell its
Option Stock to the U.S. Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Power of Attorney or
the Custody Agreement by such Selling Stockholder and the consummation
by such Selling Stockholder of the transactions contemplated hereby
and thereby.
(e) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any shares of
Common Stock or any security convertible into or exchangeable or
exercisable for shares of Common Stock to facilitate the sale or
resale of the shares of the Stock.
5. Purchase of the Stock by the U.S. Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 21,250,000 shares of
the Firm Stock and the Crown Selling Stockholders hereby agree to sell an
aggregate of 3,750,000 shares of the Firm Stock (as allocated among the Crown
Selling Stockholders pursuant to Schedule 2 hereto) to the several U.S.
Underwriters and each U.S. Underwriter, severally and not jointly, agrees to
purchase the respective number of shares of Firm Stock set opposite that U.S.
Underwriter's name in Schedule 1 hereto at U.S. $__________ a share. Each U.S.
Underwriter shall be obligated to purchase from the Company and from each Crown
Selling Stockholder that number of shares of the Firm Stock which represents the
same proportion of the number of shares of the Firm Stock to be sold by the
Company and the Crown Selling Stockholders as the number of shares of the Firm
Stock set forth opposite the name of such U.S. Underwriter in Schedule 1
represents of the total number of shares of the Firm Stock to be purchased by
all of the U.S. Underwriters pursuant to this Agreement. The respective purchase
obligations of the U.S. Underwriters with respect to the
15
Firm Stock shall be rounded among the U.S. Underwriters to avoid fractional
shares, as the Representatives may determine.
In addition, the Option Selling Stockholders, severally and not
jointly, grant to the U.S. Underwriters an option to purchase up to an aggregate
of 4,687,500 shares of Option Stock (as allocated among the Option Selling
Stockholders pursuant to Schedule 2 hereto). Such option is granted solely for
the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 7 hereof. Shares of Option Stock shall be
purchased severally for the account of the U.S. Underwriters in proportion to
the number of shares of Firm Stock set opposite the name of such U.S.
Underwriters in Schedule 1 hereto at U.S. $__________ a share. The respective
purchase obligations of each U.S. Underwriter with respect to the Option Stock
shall be adjusted by the Representatives so that no U.S. Underwriter shall be
obligated to purchase Option Stock other than in 100 share amounts.
The Company and the Crown Selling Stockholders shall not be obligated
to deliver any of the Stock to be delivered on the First Delivery Date (as
hereinafter defined) except upon payment for all the Stock to be purchased on
such Delivery Date as provided herein. The Option Selling Stockholders shall
not be obligated to deliver any of the Option Stock to be delivered on the
Second Delivery Date (as hereinafter defined), except upon payment for all the
Option Stock to be purchased on such delivery date as provided herein.
6. Offering of Stock by the U.S. Underwriters.
Upon authorization by the Representatives of the release of the Firm
Stock, the several U.S. Underwriters propose to offer the Firm Stock for sale
upon the terms and conditions set forth in the Prospectus. The Firm Stock is to
be offered to the public initially at U.S. $________ a share.
Each U.S. Underwriter agrees that, except to the extent permitted by
the Agreement Between U.S. Underwriters and International Managers, it will not
offer or sell any of the Stock outside of the United States or Canada.
7. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of Cravath, Swaine & Moore, 825
Eighth Avenue, New York, NY 10019, at 10:00 A.M., New York City time, on the
third full business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the Representatives
and the Company. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Company and the Crown Selling
Stockholders shall deliver or cause to be delivered certificates representing
the Firm Stock to the Representatives for the account of each U.S. Underwriter
against payment to or upon the order of the Company and the Crown Selling
Stockholders of the purchase price in immediately available funds. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each U.S. Underwriter
hereunder. Upon delivery, the Firm Stock shall be registered in such names and
in such denominations as the Representatives shall request in writing not less
than two full business days prior to the First
16
Delivery Date. For the purpose of expediting the checking and packaging of the
certificates for the Firm Stock, the Company and the Crown Selling Stockholders
shall make the certificates representing the Firm Stock available for inspection
by the Representatives in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 5 may be exercised by written notice
being given to the Company and to the Option Selling Stockholders by the
Representatives. Such notice shall set forth the aggregate number of shares of
Option Stock as to which the option is being exercised, the names in which the
shares of Option Stock are to be registered, the denominations in which the
shares of Option Stock are to be issued and the date and time, as determined by
the Representatives, when the shares of Option Stock are to be delivered;
provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The date and time the
shares of Option Stock are delivered are sometimes referred to as the "Second
Delivery Date" and the First Delivery Date and the Second Delivery Date are
sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 7
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, each Option Selling
Stockholder shall deliver or cause to be delivered the certificates representing
the Option Stock to be sold by such Option Selling Stockholder to the
Representatives for the account of each U.S. Underwriter against payment to or
upon the order of the Company of the purchase price in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each U.S. Underwriter hereunder. Upon delivery, the Option Stock shall be
registered in such names and in such denominations as the Representatives shall
request in the aforesaid written notice. For the purpose of expediting the
checking and packaging of the certificates for the Option Stock, the Option
Selling Stockholders shall make the certificates representing the Option Stock
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to the Second
Delivery Date.
8. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than Commission's close of business
on the second business day following the execution and delivery of
this Agreement or, if applicable, such earlier time as may be required
by Rule 430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or to the
Prospectus
17
except as permitted herein; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the U.S. Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of earnings per
share) and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus and, if the delivery of a
prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Representatives and, upon their
request, to prepare and furnish without charge to each U.S.
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that
18
may, in the judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the U.S.
Underwriters and obtain the consent of the Representatives to the
filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days after
the end of the Company's current fiscal quarter), to make generally
available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of three years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by
the Company to its shareholders and all public reports and all reports
and financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock (other than the
Stock, the International Stock and shares issued pursuant to employee
benefit plans or other employee compensation plans existing on the
date hereof or pursuant to currently outstanding options, warrants or
rights), or sell or grant options, rights or warrants with respect to
any shares of Common Stock (other than the grant of options pursuant
to option plans existing on the date hereof), without the prior
written consent of Lehman Brothers Inc.; to cause each person that, as
of the date of this Agreement (i) is a recordholder of Common
19
Stock or (ii) has the right to acquire shares of Common Stock upon
conversion, reclassification, exchange or exercise of another
security, which right will occur or may be fully vested and
exercisable within 180 days of this Agreement (excluding the right to
acquire shares of Common Stock pursuant to the CTSH All Employee Plan
and the CTSH Bonus Share Plan, each as defined in the Prospectus); to
furnish to the Representatives, prior to the First Delivery Date, a
letter or letters, in form and substance substantially similar to
Exhibit A attached hereto (which is substantially identical to Exhibit
A to the International Underwriting Agreement);
(j) Prior to filing with the Commission any reports on Form SR
pursuant to Rule 463 of the Rules and Regulations, to furnish a copy
thereof to the counsel for the U.S. Underwriters and receive and
consider its comments thereon, and to deliver promptly to the
Representatives a signed copy of each report on Form SR filed by it
with the Commission; and
(k) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the U.S. Investment
Company Act of 1940, as amended, and the rules and regulations of the
Commission promulgated thereunder.
9. Further Agreements of the Crown Selling Stockholders. Each Crown
Selling Stockholder agrees:
(a) For a period of 180 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock (other than the
Stock) without the prior written consent of Lehman Brothers Inc.;
provided, however, that the foregoing provision shall not apply to
transfers, without consideration, of the Common Stock or any
securities convertible into, or exercisable or exchangeable for Common
Stock, to immediate family members, to trusts established for the
benefit of one or more immediate family members, or to trusts
established for charitable purposes, provided that, in each case
referred to in this proviso, the transferee executes and delivers to
Lehman Brothers Inc. an agreement whereby the transferee agrees to be
bound by all of the foregoing terms and provisions set forth in this
Section 9(a);
(b) That the Stock to be sold by such Crown Selling Stockholder
hereunder which is represented by the certificates held in custody for
such Crown Selling Stockholder is subject to the interest of the U.S.
Underwriters, that the arrangements made by such Crown Selling
Stockholder for such custody are to that extent irrevocable, and that
the obligations of such Crown Selling Stockholder hereunder shall not
be terminated by any act of such Crown Selling
20
Stockholder, by operation of law, by the death or incapacity of any
individual Crown Selling Stockholder or, in the case of a trust, by
the death or incapacity of any executor or trustee or the termination
of such trust, or the occurrence of any other event; and
(c) To deliver to the Representatives prior to the First Delivery
Date a properly completed and executed United States Treasury
Department Form W-8 (if such Crown Selling Stockholder is a non-United
States person or Form W-9 (if such Crown Selling Stockholder is a
United States person).
10. Further Agreements of the Executive Selling Stockholders. Each
Executive Selling Stockholder, severally and not jointly, agrees with respect
only to such Executive Selling Stockholder:
(a) For a period of 180 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock without the prior
written consent of Lehman Brothers, Inc.; provided, however, that on
the Second Delivery Date each Executive Selling Stockholder may sell
the number of shares of Common Stock listed opposite such Executive
Selling Stockholder's name on Schedule 2 hereto to the Underwriters
pursuant to Section 5 hereof, it being understood that such number of
shares represents an amount not in excess of 12% of such Executive
Selling Stockholder's beneficial ownership interest in Common Stock of
the Company on a fully diluted basis, as of the date of the
Prospectus, after giving effect to the conversion of all shares of the
Company's Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock into shares of Common Stock (the
"Conversions"), the reclassification of shares of the Company's Class
B Common Stock into shares of Common Stock (the "Reclassification")
and the Roll-Up.
(b) That the Stock to be sold by such Executive Selling
Stockholder hereunder which is represented by the certificates or
option exercise notices held in custody for such Executive Selling
Stockholder is subject to the interest of the U.S. Underwriters, that
the arrangements made by such Executive Selling Stockholder for such
custody are to that extent irrevocable, and that the obligations of
such Executive Selling Stockholder hereunder shall not be terminated
by any act of such Executive Selling Stockholder, by operation of law,
by the death or incapacity of such Executive Selling Stockholder or,
in the case of a trust, by the death or incapacity of any executor or
trustee or the termination of such trust, or the occurrence of any
other event.
(c) To deliver to the Representatives prior to the Second
Delivery Date a properly completed and executed United States Treasury
Department Form W-8
21
(if such Executive Selling Stockholder is a non-United States person)
or Form W-9 (if such Executive Selling Stockholder is a United States
person).
11. Further Agreements of the Employee Selling Stockholders. Each
Employee Selling Stockholder, severally and not jointly, agrees with respect
only to such Employee Selling Stockholder:
(a) For a period of 180 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock without the prior
written consent of Lehman Brothers Inc.; provided, however, that on
the Second Delivery Date each Employee Selling Stockholder may sell
the number of shares of Common Stock listed opposite such Employee
Selling Stockholder's name on Schedule 2 hereto to the U.S.
Underwriters pursuant to Section 5 hereof, it being understood that
such number of shares represents an amount not in excess of 12% of
such Employee Selling Stockholder's beneficial ownership interest in
Common Stock of the Company on a fully diluted basis as of the date of
the Prospectus, after giving effect to the Conversions, the
Reclassification and the Roll-Up; provided further, that to the extent
the total number of shares listed opposite of any Employee Selling
Stockholder's name on Schedule 2 hereto are not sold to the U.S.
Underwriters pursuant to Section 5 hereof for any reason, such
Employee Selling Stockholder may sell to third parties any shares that
could have been sold but were not sold pursuant to Section 5 hereof in
compliance with the registration requirements of the Securities Act or
pursuant to a valid exemption therefrom.
(b) That the Stock to be sold by such Employee Selling
Stockholder hereunder which is represented by the certificates or
option exercise notices held in custody for such Employee Selling
Stockholder is subject to the interest of the U.S. Underwriters, that
the arrangements made by such Employee Selling Stockholder for such
custody are to that extent irrevocable, and that the obligations of
such Employee Selling Stockholder hereunder shall not be terminated by
any act of such Employee Selling Stockholder, by operation of law, by
the death or incapacity of such Employee Selling Stockholder or, in
the case of a trust, by the death or incapacity of any executor or
trustee or the termination of such trust, or the occurrence of any
other event.
(c) To deliver to the Representatives prior to the Second
Delivery Date a properly completed and executed United States Treasury
Department Form W-8 (if such Employee Selling Stockholder is a non-
United States person) or Form W-9 (if such Employee Selling
Stockholder is a United States person).
22
12. Further Agreements of the Sponsor Selling Stockholders. Each
Sponsor Selling Stockholder, severally and not jointly, agrees with respect only
to such Sponsor Selling Stockholder:
(a) For a period of 180 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock without the prior
written consent of Lehman Brothers Inc.; provided, however, that on
the Second Delivery Date each Sponsor Selling Stockholder may sell
the number of shares of Common Stock listed opposite such Sponsor
Selling Stockholder's name on Schedule 2 hereto to the U.S.
Underwriters pursuant to Section 5 hereof, it being understood that
such number of shares represents a pro rata allocation among Sponsor
Selling Stockholders of Option Stock in an amount equal to the
difference between the total number of Option Stock and the aggregate
number of Option Stock sold by the Executive Selling Stockholders and
the Employee Selling Stockholders pursuant to Section 5 hereof.
(b) That the Stock to be sold by such Sponsor Selling Stockholder
hereunder which is represented by the certificates held in custody for
such Sponsor Selling Stockholder is subject to the interest of the
U.S. Underwriters, that the arrangements made by such Sponsor Selling
Stockholder for such custody are to that extent irrevocable, and that
the obligations of such Sponsor Selling Stockholder hereunder shall
not be terminated by any act of such Sponsor Selling Stockholder, by
operation of law, by the death or incapacity of such Sponsor Selling
Stockholder or, in the case of a trust, by the death or incapacity of
any executor or trustee or the termination of such trust, or the
occurrence of any other event.
(c) To deliver to the Representatives prior to the Second
Delivery Date a properly completed and executed United States Treasury
Department Form W-8 (if such Sponsor Selling Stockholder is a non-
United States person or Form W-9 (if such Sponsor Selling Stockholder
is a United States person).
13. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments, supplements and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of delivering and
distributing the Custody Agreement and the Power of Attorney; (e) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Stock; (f) any applicable
listing
23
or other fees; (g) the fees and expenses (not in excess, in the
aggregate, of $__________) of qualifying the Stock under the securities laws of
the several jurisdictions as provided in Section 8(h) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the U.S. Underwriters); (h) all fees and expenses of an independent
underwriter; (i) all costs and expenses of the U.S. Underwriters, including the
fees and disbursements of counsel for the U.S. Underwriters, incident to the
offer and sale of shares of the Stock by the U.S. Underwriters to employees and
persons having business relationships with the Company and its subsidiaries; (k)
all fees and expenses of Hutchins, Wheeler & Dittmar, counsel to the Sponsor
Selling Stockholders, incurred in connection with the Public Offering; and (l)
all other costs and expenses incident to the performance of the obligations of
the Company and the Selling Stockholders under this Agreement; provided that,
except as provided in this Section 13 and in Section 18, the U.S. Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Stock which they may sell and the
expenses of advertising any offering of the Stock made by the U.S. Underwriters.
14. Conditions of U.S. Underwriters' Obligations. The respective
obligations of the U.S. Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the
Company and the Selling Stockholders contained herein, to the performance by the
Company and the Selling Stockholders of their obligations hereunder, and to each
of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 8(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied
with.
(b) No U.S. Underwriter or International Manager shall have
discovered and disclosed to the Company on or prior to such Delivery
Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of Latham & Watkins, counsel for the U.S.
Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form, validity, execution and delivery of this
Agreement, the International Underwriting Agreement, the Custody
Agreement, the Power of Attorney, the Stock, the Registration
Statement and the Prospectus, and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
U.S. Underwriters, and the Company and the Selling Stockholders shall
have furnished
24
to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Cravath, Swaine & Moore shall have furnished to the
Representatives its written opinion, as counsel to the Company,
addressed to the U.S. Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, to
the effect that:
(i) Each of the Company and CCI is a corporation validly
existing and in good standing under the laws of the state of its
incorporation (which opinion may be based solely on a certificate
of the Secretary of State of such state), and the Company has all
requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus. Each of the Company and CCI is duly registered and
qualified to conduct its business and is in good standing (which
opinion may be based solely on a certificate of the Secretary of
State of such state), in each jurisdiction or place where, based
on a certificate of an officer of the Company, the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or qualify or to be in good standing would not have a
Material Adverse Effect;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the shares of Stock being
delivered on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus;
(iii) Except as described in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any shares of the
Stock pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel;
(iv) To knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the
Company or any of the Significant Subsidiaries, or to which any
of their respective properties is subject, that are not disclosed
in the Prospectus and which are reasonably likely to have a
Material Adverse Effect or to materially affect the issuance of
the shares of capital stock or the consummation of the
transactions contemplated by this Agreement and the Roll-Up. To
the knowledge of such counsel, there are no agreements,
contracts, indentures, leases or other instruments to which the
Company or any of the Significant
25
Subsidiaries is a party or to which any of their respective
properties or assets is subject that are required to be described
in, or filed as exhibits to, the Registration Statement and the
Prospectus that have not been so described or filed;
(v) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations;
(vii) The statements contained (A) in the Prospectus under
the captions "Description of Capital Stock", "Shares Eligible for
Future Sale", "Certain United States Federal Tax Consequences to
Non-United States Holders" and paragraphs 1, 2, 3, 4, 5, 6, 10,
11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 under the caption
"Underwriting" and (B) in the Registration Statement in Items 14
and 15, in each case insofar as they are descriptions of
contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate in all
material respects and present fairly the information purported to
be described therein;
(viii) This Agreement and the International Underwriting
Agreement have each been duly and validly authorized, executed
and delivered by the Company and CCI;
(ix) None of the issuance, offer or sale of the shares of
Common Stock, the execution, delivery or performance by the
Company of this Agreement and the International Underwriting
Agreement, compliance by the Company with the provisions hereof
nor consummation by the Company of the transactions contemplated
hereby and in the Roll-Up (i) requires any consent, approval,
authorization or other order of, or registration or filing with,
any court, regulatory body, administrative agency or other
governmental body, agency or official, or conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, the certificate of incorporation or by-laws or
other organizational
26
documents of the Company or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default
under, any agreement filed as an exhibit to, or incorporated by
reference in, the Registration Statement (the "Material
Agreements"), or violates or will violate any law, rule or
regulation of the United States, or the State of New York or the
General Corporation Law of the State of Delaware, or, to such
counsel's knowledge, any order or decree of any court or
government agency or instrumentality or will result in the
creation or imposition of any Lien upon any property or assets of
the Company or CCI pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of
them may be bound or under any to which any of their respective
property or assets is subject, except in each case such breaches,
conflicts or defaults that, individually or in the aggregate,
would not have a Material Adverse Effect. For purposes of the
foregoing opinion, such counsel may assume that any agreements
referred to in clause (ii) above that are governed by laws other
than the laws of the State of New York, are governed by and would
be interpreted in accordance with the laws of the State of New
York; and
(x) The Company is not and, upon sale of the shares of
Common Stock to be issued and sole thereby in accordance herewith
and the application of the net proceeds to the Company of such
sale as described in the Prospectus under the caption "Use of
Proceeds," will not be an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
In addition, such counsel shall also state that such counsel has
participated in conferences with officers of the Company and with the
independent public accountants for the Company, concerning the
preparation of the Registration Statement and the Prospectus, and,
although such counsel has made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectus, it is not passing upon and does not assume any
responsibility for the accuracy or completeness of the statements
contained in the Registration Statement and the Prospectus, and has
not made any independent check or verification thereof, except insofar
as such statements relate to such counsel and to clause (xii) above,
and on the basis of the foregoing such counsel's work in connection
with this matter did not disclose any information that gave such
counsel reason to believe that the Registration Statement and the
Prospectus, as of its date or as of the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial
data included therein).
27
The opinion of such counsel may be limited to the laws of the state of New
York, the General Corporation Law of the state of Delaware and the Federal
laws of the United States.
(e) Brown, Parker & Leahy, L.L.P. shall have furnished to the
Representatives its written opinion, as counsel to the Company,
addressed to the U.S. Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, to
the effect that:
(i) All of the issued shares of capital stock of each
Subsidiary of the Company have been duly and validly authorized
and issued and are fully paid, non-assessable and (except for
directors' qualifying shares and as described in the Prospectus
with respect to CTI) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(ii) To knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the
Company or any of the Significant Subsidiaries, or to which any
of their respective properties is subject, that are not disclosed
in the Prospectus and which are reasonably likely to have a
Material Adverse Effect or to materially affect the issuance of
the shares of capital stock or the consummation of the
transactions contemplated by this Agreement and the Roll-Up;
(iii) To the knowledge of such counsel, except as described
in the Prospectus there are no contracts, agreements or
understandings between the Company or any of the Significant
Subsidiaries and any person granting such person the right to
require the Company or any of the Significant Subsidiaries to
file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company or any of the Significant
Subsidiaries to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company or any of the Significant
Subsidiaries under the Securities Act; and
(iv) The Senior Credit Facility has been duly and validly
authorized, executed and delivered by CCI and CCIC (PR) and
assuming due authorization, execution and delivery by the other
parties thereto, constitutes the valid and binding agreement of
CCI and CCIC (PR), enforceable against CCI and CCIC (PR) in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from
time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness,
28
good faith and fair dealing, regardless of whether in a
proceeding in equity or at law).
The opinion of such counsel may be limited to the laws of the state of
Texas, the state of New York, the General Corporation Law of the state
of Delaware and the Federal laws of the United States.
(f) The counsel for each of the Crown Selling Stockholders shall
have furnished to the Representatives its written opinion, as counsel
to such Selling Stockholder, addressed to the U.S. Underwriters and
dated the First Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) Such Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and
the Custody Agreement; the execution, delivery and performance of
this Agreement, the Power of Attorney and the Custody Agreement
by such Selling Stockholder and the consummation by such Selling
Stockholder of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which
such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of
such Selling Stockholder is subject, nor will such actions result
in any violation of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property
or assets of such Selling Stockholder; and, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with
the purchase and distribution of the Stock by the U.S.
Underwriters and the International Managers, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement,
the Power of Attorney or the Custody Agreement by such Selling
Stockholder and the consummation by such Selling Stockholder of
the transactions contemplated hereby and thereby;
(ii) This Agreement has each been duly executed and
delivered by or on behalf of such Selling Stockholder;
(iii) A Power-of-Attorney and a Custody Agreement have been
duly executed and delivered by such Selling Stockholder and
constitute
29
valid and binding agreements of such Selling Stockholder,
enforceable in accordance with their respective terms;
(iv) Such Selling Stockholder has full right, power and
authority to sell, assign, transfer and deliver the shares to be
sold by such Selling Stockholder hereunder; and
(v) Upon physical delivery of the certificates representing
the shares of Stock to be sold by such Selling Stockholder under
this Agreement to the U.S. Underwriters in the State of New York
with undated stock powers duly endorsed in blank, and upon
payment therefor in accordance with the terms of this Agreement,
the U.S. Underwriters will become the "protected purchasers" (as
defined in Section 8-303(a) of the New York UCC) of such shares,
free of any "adverse claim" (as defined in Section 8-102(a)(1) of
the New York UCC), assuming that the U.S. Underwriters do not
have notice of any adverse claim to such shares.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the Commonwealth of Pennsylvania
and the General Corporation Law of the State of Delaware and that such
counsel is not admitted in the State of New York (with all New York
law opinions being based upon the assumption that the laws of the
State of New York and the laws of the Commonwealth of Pennsylvania are
identical in all material respects) and (ii) in rendering the opinions
in Section 14(f)(i) and (iv) above, rely upon a certificate of such
Selling Stockholder in respect of matters of fact as to ownership of
and liens, encumbrances, equities or claims on the shares of Stock
sold by such Selling Stockholder, provided that such counsel shall
furnish copies thereof to the Representatives and state that they
believe that both the U.S. Underwriters and they are justified in
relying upon such certificate.
(g) The counsel for each Executive Selling Stockholder and
each Employee Selling Stockholder shall have furnished to the
Representatives its written opinion, as counsel to such Selling
Stockholder, addressed to the U.S. Underwriters and dated the Second
Delivery Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Such Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and
the Custody Agreement; the execution, delivery and performance of
this Agreement, the Power of Attorney and the Custody Agreement
by such Selling Stockholder and the consummation by such Selling
Stockholder of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of
30
trust, loan agreement or other agreement or instrument known to
such counsel to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, nor
will such actions result in any violation of any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property or assets of such Selling
Stockholder; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Stock by the
U.S. Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Power of Attorney
or the Custody Agreement by such Selling Stockholder and the
consummation by such Selling Stockholder of the transactions
contemplated hereby and thereby;
(ii) This Agreement has been duly executed and
delivered by or on behalf of such Selling Stockholder;
(iii) A Power-of-Attorney and a Custody Agreement have
been duly executed and delivered by such Selling Stockholder and
constitute valid and binding agreements of such Selling
Stockholder, enforceable in accordance with their respective
terms;
(iv) Immediately prior to the Second Delivery Date,
such Selling Stockholder had full right, power and authority to
sell, assign, transfer and deliver such shares to be sold by such
Selling Stockholder hereunder; and
(v) Good and valid title to the shares of Stock to be
sold by such Selling Stockholder under this Agreement, free and
clear of all liens, encumbrances, equities or claims, has been
transferred to each of the several U.S. Underwriters.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of Texas and the
General Corporation Law of the State of Delaware and that such counsel
is not admitted in the State of New York and (ii) in rendering the
opinion in Section 14(g)(iv) above, rely upon a certificate of such
Selling Stockholder in respect of matters of fact as to ownership of
and liens, encumbrances, equities or claims on the shares of Stock
sold by such Selling Stockholder, provided that such counsel shall
furnish copies thereof to the
31
Representatives and state that they believe that both the U.S.
Underwriters and they are justified in relying upon such certificate.
(g) The counsel for each Sponsor Selling Stockholder shall have
furnished to the Representatives its written opinion, as counsel to
such Sponsor Selling Stockholder, addressed to the U.S. Underwriters
and dated the Second Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) This Agreement has each been duly executed and
delivered by or on behalf of such Sponsor Selling Stockholder;
(ii) A Power-of-Attorney and a Custody Agreement have
been duly executed and delivered by such Sponsor Selling
Stockholder and constitute valid and binding agreements of such
Sponsor Selling Stockholder, enforceable in accordance with their
respective terms; and
(iii) The delivery by each Sponsor Selling Stockholder
to the several U.S. Underwriters of certificates for the shares
of Common Stock being sold under this Agreement, with due
endorsement for transfer by such Sponsor Selling Stockholder,
against payment therefor in accordance with this Agreement, has
transferred valid title to such shares of Stock, free and clear
of all adverse claims, to each of the several U.S. Underwriters,
assuming that the U.S. Underwriters are without actual notice of
any adverse claim.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the Commonwealth of
Massachusetts and the General Corporation Law of the State of Delaware
and that such counsel is not admitted in the State of New York.
(i) The Representatives shall have received an opinion, dated
the First Delivery Date, of Norton Rose, English counsel for Castle
Transmission Services (Holdings) Ltd., substantially in the form of
Exhibit B hereto.
(j) The Representatives shall have received from Latham &
Watkins, counsel for the U.S. Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
32
(k) At the time of execution of this Agreement, the
Representatives shall have received from KPMG Peat Marwick LLP a
letter, in form and substance satisfactory to the Representatives,
addressed to the U.S. Underwriters and dated the date hereof (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters" to
U.S. Underwriters in connection with registered public offerings.
(l) With respect to the letter of KPMG Peat Marwick LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
U.S. Underwriters and dated such Delivery Date (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(m) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chief Executive Officer
or President and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied with all its agreements contained
herein; none of the events described in clause (i) or (ii) of
Section 14(q) have occurred or identifying all such events as
have occurred; and the conditions set forth in Sections 14(a) and
14(t) have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective
Date, the Registration Statement and Prospectus did not include
any untrue
33
statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the Effective
Date no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
(n) Each of the Crown Selling Stockholders (or the Custodian or
one or more attorneys-in-fact on behalf of each of the Crown Selling
Stockholders) shall have furnished to the Representatives on the First
Delivery Date a certificate, dated the First Delivery Date, signed by,
or on behalf of, each of the Crown Selling Stockholders (or the
Custodian or one or more attorneys-in-fact) stating that the
representations, warranties and agreements of each of the Crown
Selling Stockholders contained herein are true and correct as of the
First Delivery Date and that each of the Crown Selling Stockholders
has complied with all agreements contained herein to be performed by
each of the Crown Selling Stockholders at or prior to the First
Delivery Date.
(o) Each Option Selling Stockholder (or one or more attorneys-in-
fact on behalf of such Selling Stockholder), shall have furnished to
the Representatives on the Second Delivery Date a certificate, dated
the Second Delivery Date, signed by, or on behalf of, such Selling
Stockholder (or the Custodian or one or more attorneys-in-fact)
stating that the representations, warranties and agreements of such
Selling Stockholder contained herein are true and correct as of the
Second Delivery Date and that such Selling Stockholder has complied
with all agreements contained herein to be performed by such Selling
Stockholder at or prior to the Second Delivery Date.
(p) The Company shall have furnished to the Representatives a
certificate, substantially in the Form of Exhibit C hereto, dated the
First Delivery Date, of its Chief Financial Officer with respect to
certain data of the Company set forth in the Prospectus.
(q) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations, business or prospects of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is,
in the judgment
34
of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Stock being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(r) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded any of
the Company's securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's securities.
(s) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of a
majority in interest of the several U.S. Underwriters, impracticable
or inadvisable to proceed with the public offering or delivery of the
Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(t) The NASDAQ National Market System shall have approved the
Stock for inclusion, subject only to official notice of issuance and
evidence of satisfactory distribution.
(u) CTI and CTSH shall have received from Credit Suisse First
Boston, as arranger and agent, and J.P. Morgan Securities Ltd., as co-
arranger, and from each lender under the Loan Amendment Agreement
dated May 21, 1997, an irrevocable consent and waiver to certain
changes of control provisions of such agreement as applicable to the
Roll-Up, and the Company shall provide a copy of such consent and
waiver to the Representatives.
35
(v) The Company shall have concluded the Stock Split and the
Conversions and shall have reclassified all shares of Class B Common
Stock as Common Stock (each as defined in the Prospectus).
(w) The Company shall have delivered to the Representatives
copies of the Governance Agreement, the Stockholders Agreement, the
CTSH Shareholders' Agreement and the CTI Services Agreement (each as
defined in the Prospectus) executed and delivered by all parties
thereto.
(x) The Company shall have delivered to the Representatives
copies of written documentation evidencing (i) the ruling of the FCC
under Section 310(b)(4) of the Communications Act of 1934, as amended,
permitting up to 49.9% foreign ownership of the Company, at least 25%
of which will be from World Trade Organization member nations.
(y) The Representatives shall have received from each
stockholder of the Company an executed letter in the form of Exhibit A
pursuant to Section 8(i) hereto.
(z) The Representatives shall have received a copy of the
executed Custody Agreement and Power of Attorney from each Selling
Stockholder.
(aa) The closing under the International Underwriting Agreement
shall have occurred concurrently with the closing hereunder on the
First Delivery Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the U.S. Underwriters.
15. Indemnification and Contribution.
(a) The Company, the Crown Selling Stockholders and the
Executive Selling Stockholders, jointly and severally, shall indemnify
and hold harmless each U.S. Underwriter, its officers and employees
and each person, if any, who controls any U.S. Underwriter within the
meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to
which that U.S. Underwriter, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any breach of the representations and warranties of
such Crown Selling Stockholder or Executive Selling Stockholder, as
the case may be, contained herein, (ii) any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus
or in any amendment or supplement thereto, (iii) the omission or
36
alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iv) any
act or failure to act or any alleged act or failure to act by any U.S.
Underwriter in connection with, or relating in any manner to, the
Stock or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (ii) or (iii)
above (provided that the Company, the Crown Selling Stockholders and
the Executive Selling Stockholders shall not be liable under this
clause (iv) to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures
to act undertaken or omitted to be taken by such U.S. Underwriter
through its gross negligence or willful misconduct), and shall
reimburse each U.S. Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that U.S. Underwriter, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however,
that the Company, the Crown Selling Stockholders and the Executive
Selling Stockholders shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
such amendment or supplement, in reliance upon and in conformity with
written information concerning such U.S. Underwriter furnished to the
Company through the Representatives by or on behalf of any U.S.
Underwriter specifically for inclusion therein; provided further that
neither the Company nor any Crown Selling Stockholder or Executive
Selling Stockholder shall be liable to any U.S. Underwriter under the
indemnity agreement in this paragraph 15(a) with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage
or liability of such U.S. Underwriters results from the fact that such
U.S. Underwriter sold shares of Common Stock to a person as to whom
there was not sent or given, at or prior to written confirmation of
such sale, a copy of the Prospectus as then amended or supplemented if
the Company had previously furnished copies thereof in the quantity
requested and in a timely manner in accordance with Section 8(c)
hereof to such U.S. Underwriter and the loss, claim, damage or
liability of such U.S. Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus
and corrected in the Prospectus as amended or supplemented.
Notwithstanding the foregoing provisions, the indemnity and
contribution obligations of the Crown Selling Stockholders and the
Executive Selling Stockholders shall be subject to the following
additional limitations: (i) the U.S. Underwriters shall pursue and
satisfy any and all claims arising under this Agreement or otherwise
(collectively,
37
"Claims") by seeking recovery from the Company prior to pursuing any
Claim against the Crown Selling Stockholders or the Executive Selling
Stockholders, and the U.S. Underwriters shall thereafter be entitled
to pursue any remaining unsatisfied Claims by seeking recovery from
the Crown Selling Stockholders and the Executive Selling Stockholders
only following the Company's failure to satisfy in full the Claims as
a result of the Company's insolvency, bankruptcy or liquidation; (ii)
the aggregate amount of any Selling Stockholder's indemnity and
contribution obligations under this paragraph 15(a) shall not exceed
the net cash proceeds received by such Selling Stockholder from its
sale of Stock in the offering after reduction for (A) taxes, (B)
underwriting commissions and discounts, (C) other fees and expenses
incurred by such Selling Stockholder relating to the offering,
including legal and financial advisory fees, and (D) the aggregate
amount of any and all direct and indirect costs or expenses incurred
by such Selling Stockholder in defense or settlement of any other
claim against it relating or attributable to the offering or the sale
of shares of Stock by such Selling Stockholder thereunder, including
without limitation claims under the Act; and (iii) the Crown Selling
Stockholders and the Executive Selling Stockholders shall be liable
under this paragraph 15(a) solely with respect to any untrue statement
of material fact contained in the Registration Statement and the
Prospectus which was actually known by such Selling Stockholder as of
the date of the Registration Statement or Prospectus (or such
amendment or supplement thereto) to be untrue, or any omission to
state a material fact which was actually known by such Selling
Stockholder as of the date of the Registration Statement or Prospectus
(or such amendment or supplement thereto) to be necessary to make the
statements contained in the Registration Statement or Prospectus (or
such amendment or supplement thereto) in the light of the
circumstances under which they were made, not misleading as of the
date of the Registration Statement or Prospectus (or such amendment or
supplement thereto). The provisions of this Section 15 shall
constitute the sole and exclusive remedy available to the U.S.
Underwriters with respect to any claims against the Crown Selling
Stockholders and the Executive Selling Stockholders relating to the
offering or sale of shares by such Selling Stockholders hereunder.
(b) Each Employee Selling Stockholder and each Sponsor Selling
Stockholder, severally and not jointly, shall indemnify and hold
harmless each U.S. Underwriter, its officers and employees, and each
person, if any, who controls any U.S. Underwriter within the meaning
of the Securities Act, from and against any loss, claim, damage or
liability, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which that U.S. Underwriter,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
breach of the representations and warranties of such Employee Selling
Stockholder or Sponsor Selling Stockholder, as the case may
38
be, contained herein, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (iii) the omission or alleged omission to state
in any Preliminary Prospectus, Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission relates to information provided to the
Company or the Representatives in writing by such Selling Stockholder
specifically for use in the Registration Statement, the Preliminary
Prospectus or the Prospectus or to any breach of the representations
and warranties made by such Employee Selling Stockholder or such
Sponsor Selling Stockholder in Section 4 of this Agreement; and shall
reimburse each U.S. Underwriter, its officers and employees and each
such controlling person for any legal or other expenses reasonably
incurred by that U.S. Underwriter, its officers and employees or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that such
Employee Selling Stockholder or such Sponsor Selling Stockholder shall
not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any such amendment or supplement in
reliance upon and in conformity with written information concerning
such U.S. Underwriter furnished to the Company through the
Representatives by or on behalf of any U.S. Underwriter specifically
for inclusion therein.; provided further that no Employee Selling
Stockholder or Sponsor Selling Stockholder shall be liable to any U.S.
Underwriter under the indemnity agreement in this paragraph 15(a) with
respect to any Preliminary Prospectus to the extent that any such
loss, claim, damage or liability of such U.S. Underwriters results
from the fact that such U.S. Underwriter sold shares of Common Stock
to a person as to whom there was not sent or given, at or prior to
written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented if the Company had previously furnished copies
thereof in the quantity requested and in a timely manner in accordance
with Section 8(c) hereof to such U.S. Underwriter and the loss, claim,
damage or liability of such U.S. Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary
Prospectus and corrected in the Prospectus as amended or supplemented.
The foregoing indemnity agreement constitutes the sole and exclusive
remedy available to the U.S. Underwriters with respect to any claims
against the Employee Selling Stockholders and the Sponsor Selling
Stockholders relating to the offering or sale of Shares by such
Selling Stockholders hereunder.
39
(c) Each U.S. Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers who sign the
Registration Statement, each of its directors (including any person
who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), and each person, if
any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information concerning such U.S.
Underwriter furnished to the Company through the Representatives by or
on behalf of that U.S. Underwriter specifically for inclusion therein,
and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any U.S. Underwriter may otherwise
have to the Company or any such director, officer, employee or
controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 15 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 15, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 15 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 15.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the
40
indemnifying party shall not be liable to the indemnified party under
this Section 15 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof;
provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the
indemnified party shall have in good faith reasonably concluded that
there may be defenses available to it which are different from or
additional to those available to the indemnifying party or if the
interests of the indemnified party may be deemed to conflict with the
interests of the indemnifying party, the indemnified party shall have
the right to select a separate counsel in the defense of such action,
with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying
party as incurred, provided further that in no event shall the
foregoing proviso require the indemnifying party to bear the fees and
expenses of more than one separate counsel to represent jointly each
of (i) the Representatives and those other U.S. Underwriters and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought under this Section 15, (ii) the Company and
its Subsidiaries, (iii) the Crown Selling Stockholders, (iv) the
Executive Selling Stockholders, (v) the Employee Selling Stockholders
and (vi) the Sponsor Selling Stockholders. No indemnifying party shall
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party
or if there be a final judgment of the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of
such settlement or judgment to the extent provided in this Section 15.
(e) If the indemnification provided for in this Section 15 shall
for any reason be unavailable to or insufficient (other than by reason
of the exceptions provided therein) to hold harmless an indemnified
party under Section 15(a), 15(b) or 15(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company, the Crown Selling Stockholders, the Executive
Selling Stockholders, the Employee Selling Stockholders and the
41
Sponsor Selling Stockholders on the one hand and the U.S. Underwriters
on the other from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Company, the Crown Selling Stockholders, the Executive Selling
Stockholders, the Employee Selling Stockholders and the Sponsor
Selling Stockholders on the one hand and the U.S. Underwriters on the
other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Crown Selling Stockholders, the
Executive Selling Stockholders, the Employee Selling Stockholders or
the Sponsor Selling Stockholders, on the one hand and the U.S.
Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Stock purchased under this Agreement (before deducting
expenses) received by the Company, the Crown Selling Stockholders, the
Executive Selling Stockholders, the Employee Selling Stockholders or
the Sponsor Selling Stockholders, on the one hand, and the total
underwriting discounts and commissions received by the U.S.
Underwriters with respect to the shares of the Stock purchased under
this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company, the Crown Selling Stockholders,
the Executive Selling Stockholders, the Employee Selling Stockholders,
the Sponsor Selling Stockholders or the U.S. Underwriters, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, the Crown Selling Stockholders, the Executive Selling
Stockholders, the Employee Selling Stockholders, the Sponsor Selling
Stockholders and the U.S. Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 15 were to be
determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section 15
shall be deemed to include, for purposes of this Section 15(e), any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 15(e), no U.S.
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Stock underwritten by
it and distributed to the public was offered to the public exceeds the
amount of any damages which such U.S. Underwriter has otherwise paid
or become liable to pay by reason of any
42
untrue or alleged untrue statement or omission or alleged omission. No
Selling Stockholder will be required to contribute any amount in
excess of the proceeds received by such person in respect of all
shares of Stock offered and sold by it pursuant to the Registration
Statement and no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The U.S. Underwriters' obligations to contribute as
provided in this Section 15(e) are several in proportion to their
respective underwriting obligations and not joint.
(f) The U.S. Underwriters severally confirm and the Company
acknowledges that (i) the last paragraph on the cover page of the
Prospectus, (ii) the stabilization legend at the top of page i of the
Prospectus and (iii) the fourth, ninth, tenth, eleventh, and twenty-
second paragraphs and the first sentence of the thirteenth paragraph
under the caption "Underwriting" in the Prospectus constitute the only
information concerning such U.S. Underwriters furnished in writing to
the Company by or on behalf of the U.S. Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
(g) As used herein, the phrase "actual knowledge" means, with
respect to any natural person, the knowledge of such person and, with
respect to any other person, the knowledge of any natural person
exercising control (whether by ownership or management) over such
person, and shall not imply any duty to investigate or be deemed to
include any knowledge that might have become actually known following
investigation. The phrase "actually known" shall have a correlative
meaning.
16. Defaulting U.S. Underwriters.
If, on either Delivery Date, any U.S. Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting U.S. Underwriters shall be obligated to purchase the Firm Stock which
the defaulting U.S. Underwriter agreed but failed to purchase on such Delivery
Date in the respective proportions which the number of shares of the Firm Stock
set opposite the name of each remaining non-defaulting U.S. Underwriter in
Schedules 1 and 2 hereto bears to the total number of shares of the Firm Stock
set opposite the names of all the remaining non-defaulting U.S. Underwriters in
Schedules 1 and 2 hereto; provided, however, that the remaining non-defaulting
U.S. Underwriters shall not be obligated to purchase any of the Stock on such
Delivery Date if the total number of shares of the Stock which the defaulting
U.S. Underwriter or U.S. Underwriters agreed but failed to purchase on such date
exceeds 9.9% of the total number of shares of the Stock to be purchased on such
Delivery Date, and any remaining non-defaulting U.S. Underwriter shall not be
obligated to purchase more than 110% of the number of shares of the Stock which
it agreed to purchase on such Delivery Date pursuant to the terms of Section 7.
If the foregoing maximums are exceeded, the remaining non-defaulting U.S.
Underwriters, or those other U.S. Underwriters satisfactory to the
43
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Stock
to be purchased on such Delivery Date. If the remaining U.S. Underwriters or
other underwriters satisfactory to the Representatives do not elect to purchase
the shares which the defaulting U.S. Underwriter or U.S. Underwriters agreed but
failed to purchase on such Delivery Date, this Agreement (or, with respect to
the Second Delivery Date, the obligation of the U.S. Underwriters to purchase,
and of the Executive Selling Stockholders, the Employee Selling Stockholders and
the Sponsor Selling Stockholders to sell, the Option Stock) shall terminate
without liability on the part of any non-defaulting U.S. Underwriter or the
Company or the Selling Stockholders, except that the Company will continue to be
liable for the payment of expenses to the extent set forth in Sections 13 and
18. As used in this Agreement, the term "U.S. Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedules 1 and 2 hereto who, pursuant to this Section 16, purchases
Firm Stock which a defaulting U.S. Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting U.S. Underwriter
of any liability it may have to the Company and the Selling Stockholders for
damages caused by its default. If other U.S. Underwriters are obligated or
agree to purchase the Stock of a defaulting or withdrawing U.S. Underwriter,
either the Representatives or the Company may postpone the Delivery Date for up
to seven full business days in order to effect any changes that, in the opinion
of counsel for the Company or counsel for the U.S. Underwriters, may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement.
17. Termination. The obligations of the U.S. Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company and the Selling Stockholders prior to delivery of and payment for Firm
Stock if, prior to that time, any of the events described in Sections 14(q),
14(r) or 14(s) shall have occurred or if the U.S. Underwriters shall decline to
purchase the Stock for any reason permitted under this Agreement.
18. Reimbursement of U.S. Underwriters' Expenses. If the Company or
any of the Selling Stockholders shall fail to tender the Stock for delivery to
the U.S. Underwriters by reason of any failure, refusal or inability on the part
of the Company or any Selling Stockholder to perform any agreement on its part
to be performed, or because any other condition of the U.S. Underwriters'
obligations hereunder required to be fulfilled by the Company or the Selling
Stockholders is not fulfilled, the Company or any such defaulting Selling
Stockholder(s), as the case may be, will severally and not jointly, in
proportion to the shares of Stock to be sold by the Company or such defaulting
Selling Stockholder(s) hereunder, reimburse the U.S. Underwriters for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
incurred by the U.S. Underwriters in connection with this Agreement and the
proposed purchase of the Stock, and upon demand the Company or such defaulting
Selling Stockholder(s), as the case may be, shall pay the full amount thereof
to the Representatives. Neither the Company nor any Selling Stockholder shall
have the liability to any of the U.S. Underwriters for damages on account of
loss of anticipated profits from the proposed sale by them of the Stock.
44
19. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the U.S. Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Lehman Brothers Inc., Three
World Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 212-526-6588), with a copy, in the case of any notice
pursuant to Section 15(d), to the Director of Litigation, Office of
the General Counsel, Lehman Brothers Inc., Three World Financial
Center, 10th Floor, New York, NY 10285;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Charles C. Green, III, (Fax:
(713) 570-3150), with a copy to Cravath, Swaine & Moore, Worldwide
Plaza, 825 Eighth Avenue, New York, New York 10019, Attention: Stephen
L. Burns (Fax: (212) 474-3700);
(c) if to any Selling Stockholder, shall be delivered or sent by
mail, telex or facsimile transmission to such Selling Stockholder at
the address set forth in the Custody Agreement executed by such
Selling Shareholder, with a copy (a) in the case of any Crown Selling
Stockholder, to Kirkpatrick & Lockhart, 1500 Oliver Building,
Pittsburgh, Pennsylvania 15222, Attention: Jerry Owens (Fax: (412)
355-6501), (b) in the case of any Executive Selling Stockholder or
Employee Selling Stockholder, to Brown, Parker & Leahy, L.L.P., 3600
Two Allen Center, 1200 Smith Street, Houston, Texas 77002, Attention:
E. Blake Hawk (Fax: (713) 654-1871) or (c) in the case of any Sponsor
Selling Stockholder, to Hutchins, Wheeler & Dittmar, 101 Federal
Street, Boston, Massachusetts 02110, Attention: Harry A. Hanson, III
(Fax: (617) 951-1295);
provided, however, that any notice to an U.S. Underwriter pursuant to Section
15(d) shall be delivered or sent by mail, telex or facsimile transmission to
such U.S. Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Selling Stockholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the U.S. Underwriters by
Lehman Brothers Inc., Credit Suisse First Boston Corporation, Goldman, Sachs &
Co., and Smith Barney Inc. and the Company and the U.S. Underwriters shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Selling Stockholders by their respective Custodians.
20. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the U.S. Underwriters, the Company
and the Selling Stockholders and their respective personal representatives and
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Stockholders contained
in this Agreement shall also be deemed to be for the benefit of the person
45
or persons, if any, who control any U.S. Underwriter within the meaning of
Section 17 of the Securities Act and for the benefit of each International
Manager (and controlling persons thereof) who offers or sells any shares of
Common Stock in accordance with the terms of the Agreement Between U.S.
Underwriters and International Managers and (B) the indemnity agreement of the
U.S. Underwriters contained in Section 15(c) of this Agreement shall be deemed
to be for the benefit of directors of the Company, officers of the Company who
have signed the Registration Statement and any person controlling the Company
within the meaning of Section 17 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 20, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
21. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Stockholders and the U.S.
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
22. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
23. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS
RELATING TO CONFLICTS OF LAW.
24. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
25. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
46
If the foregoing correctly sets forth the agreement among the Company,
the Crown Selling Stockholders, the Executive Selling Stockholders, the Employee
Selling Stockholders, the Sponsor Selling Stockholders and the U.S.
Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
Crown Castle International Corp.
By:_________________________________
Name:____________________________
Title:
Robert A. Crown
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Barbara A. Crown
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Robert A. Crown and PNC Bank, Delaware, as
trustees for the Robert A. Crown Grantor Retained
Annuity Trust
By:_________________________________
Name: ___________________________
Attorney-In-Fact
By:_________________________________
Name: ___________________________
Attorney-In-Fact
47
Barbara A. Crown and PNC Bank, Delaware, as
trustees for the Barbara A. Crown Grantor Retained
Annuity Trust
By:_________________________________
Name: ___________________________
Attorney-In-Fact
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Ted B. Miller, Jr.
By:_________________________________
Name: ___________________________
Attorney-In-Fact
David L. Ivy
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Charles C. Green, III
By:_________________________________
Name: ___________________________
Attorney-In-Fact
John L. Gwyn
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Edward C. Hutcheson, Jr.
By:_________________________________
Name: ___________________________
Attorney-In-Fact
48
J. Landis Martin
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Robert F. McKenzie
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Tod Bettenhausen
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Kathy Broussard
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Bill Cordell
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Wesley D. Cunningham
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Angela Dennehy
By:_________________________________
Name: ___________________________
Attorney-In-Fact
49
Allyn Easter
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Martin Ellen
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Alan Rees
By:_________________________________
Name: ___________________________
Attorney-In-Fact
George Reese
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Michael Schueppert
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Jimmy Taylor
By:_________________________________
Name: ___________________________
Attorney-In-Fact
Nigel Turner
By:_________________________________
Name: ___________________________
Attorney-In-Fact
50
Mark Uminski
By: ________________________________
Name: __________________________
Attorney-In-Fact
Ed Wallander
By: ________________________________
Name: __________________________
Attorney-In-Fact
John Ward
By: ________________________________
Name: __________________________
Attorney-In-Fact
Terry Wing
By: ________________________________
Name: __________________________
Attorney-In-Fact
Centennial Fund IV, L.P.
By: ________________________________
Name: __________________________
Attorney-In-Fact
Centennial Fund V, L.P.
By: ________________________________
Name: __________________________
Attorney-In-Fact
Centennial Entrepreneurs Fund V, L.P.
By: ________________________________
Name: __________________________
Attorney-In-Fact
51
Nassau Capital Partners II, L.P.
By: ________________________________
Name: __________________________
Attorney-In-Fact
NAS Partners I, L.L.C.
By: ________________________________
Name: __________________________
Attorney-In-Fact
American Home Assurance Company
By: ________________________________
Name: __________________________
Attorney-In-Fact
Harvard Private Capital Holding Inc.
By: ________________________________
Name: __________________________
Attorney-In-Fact
Fay, Richwhite Communications Limited
By: ________________________________
Name: __________________________
Attorney-In-Fact
New York Life Insurance Company
By: ________________________________
Name: __________________________
Attorney-In-Fact
52
The Northwestern Mutual Life Insurance
Company
By: ________________________________
Name: __________________________
Attorney-In-Fact
PNC Venture Corp.
By: ________________________________
Name: __________________________
Attorney-In-Fact
Prime VIII, L.P.
By: ________________________________
Name: __________________________
Attorney-In-Fact
Win J. Neuger
By: ________________________________
Name: __________________________
Attorney-In-Fact
David B. Pinkerton
By: ________________________________
Name: __________________________
Attorney-In-Fact
Peter F. Smith
By: ________________________________
Name: __________________________
Attorney-In-Fact
53
Accepted:
Lehman Brothers Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Smith Barney Inc.
For themselves and as Representatives
of the several U.S. Underwriters named
in Schedule 1 hereto
By Lehman Brothers Inc.
By: __________________________
Name:
Title:
54
SCHEDULE 1
Number of
U.S. Underwriters Shares
- ----------------- ---------
Lehman Brothers Inc. ..........................................
Credit Suisse First Boston Corporation.........................
Goldman, Sachs & Co. ..........................................
Smith Barney Inc. .............................................
__________
Total..................................................... 25,000,000
==========
55
SCHEDULE 2
NUMBER OF
CROWN SELLING STOCKHOLDERS SHARES
- -------------------------- ---------
Robert A. Crown................................................................. 1,744,875
Barbara A. Crown................................................................ 1,744,875
Robert A. Crown and PNC Bank, Delaware as Trustees of the Robert A. Crown
Grantor Retained Annuity Trust................................................. 130,125
Barbara A. Crown and PNC Bank, Delaware, as Trustees of the Barbara A. Crown
Grantor Retained Annuity Trust................................................. 130,125
---------
Total......................................................................... 3,750,000
=========
EXECUTIVE SELLING STOCKHOLDERS
- ------------------------------
Ted B. Miller, Jr............................................................... 480,535
David L. Ivy.................................................................... 174,600
Charles C. Green, III........................................................... 142,800
John L. Gwyn.................................................................... 57,300
Edward C. Hutcheson, Jr......................................................... 78,000
J. Landis Martin................................................................ 101,285
Robert F. McKenzie.............................................................. 23,700
---------
Total......................................................................... 1,058,220
=========
EMPLOYEE SELLING STOCKHOLDERS
- -----------------------------
Tod Bettenhausen................................................................ 27,000
Kathy Broussard................................................................. 16,800
Bill Cordell.................................................................... 22,000
Wesley D. Cunningham............................................................ 17,395
Angela Dennehy.................................................................. 25,245
Allyn Easter.................................................................... 21,000
Martin Ellen.................................................................... 25,245
Alan Rees....................................................................... 69,215
George Reese.................................................................... 110,400
Michael Schueppert.............................................................. 22,730
Jimmy Taylor.................................................................... 15,000
Nigel Turner.................................................................... 25,245
Mark Uminski.................................................................... 15,000
Ed Wallander.................................................................... 18,000
John Ward....................................................................... 25,245
Terry Wing...................................................................... 24,430
-------
Total......................................................................... 479,950
=======
56
Sponsor Selling Stockholders
- ----------------------------
Centennial Fund IV, L.P......................................................... 476,183
Centennial Fund V, L.P.......................................................... 297,849
Centennial Entrepreneurs Fund V, L.P............................................ 9,213
Nassau Capital Partners II, L.P................................................. 401,985
NAS Partners I, L.L.C........................................................... 2,500
American Home Assurance Company................................................. 220,875
Harvard Private Capital Holding Inc............................................. 172,360
Fay, Richwhite Communications Limited........................................... 222,465
New York Life Insurance Company................................................. 84,415
The Northwestern Mutual Life Insurance Company.................................. 132,955
PNC Venture Corp................................................................ 159,465
Prime VIII, L.P................................................................. 65,590
Win J. Neuger................................................................... 670
David B. Pinkerton.............................................................. 270
Peter F. Smith.................................................................. 400
---------
Total......................................................................... 2,247,195
=========
57
Exhibit A
---------
Lock-up Agreement
August __, 1998
Crown Castle International Corp.
510 Bering Drive
Suite 500
Houston, Texas 77057
Lehman Brothers Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Smith Barney Inc.
As Representatives of the
several U.S. Underwriters
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Lehman Brothers International (Europe)
Credit Suisse First Boston (Europe) Limited
Goldman, Sachs International
Smith Barney Inc.
As Representatives of the several
International Managers
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
The undersigned understands that Lehman Brothers Inc., Credit Suisse
First Boston Corporation, Goldman, Sachs & Co., and Smith Barney Inc., as the
U.S. representatives of the several U.S. underwriters and Lehman Brothers
International (Europe), Credit Suisse First Boston (Europe) Limited, Goldman
Sachs International and Smith Barney Inc., as the lead managers (together with
the U.S. representatives, the "Representatives") of the several International
Managers (together with the U.S. underwriters, the "Underwriters"), propose to
enter into a U.S. underwriting agreement (the "U.S. Underwriting Agreement") and
an international underwriting agreement (the "International Underwriting
Agreement"), respectively, with Crown Castle International Corp. (the "Company")
and the other Selling Stockholders named therein, providing for the public
offering by the Underwriters, including the Representatives, of Common Stock,
par value $.01 per share (the "Common Stock"), of the
1
Company (the "Public Offering"). Capitalized terms not defined herein shall have
the meaning given them in the U.S. Underwriting Agreement.
In consideration of the Underwriters' agreement to purchase and
undertake the Public Offering of the Common Stock of the Company and the Crown
Selling Stockholders and for other good and valuable consideration, receipt of
which is hereby acknowledged, the undersigned agrees that, without the prior
written consent of Lehman Brothers Inc., he, she or it will not, during the
period commencing on the date hereof and ending 180 days after the date of the
Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of the Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or any right to acquire Common
Stock, or (ii) enter into any swap or similar agreement that transfers, in whole
or in part, the economic risk of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
provisions shall not apply to: (a) the exercise of options or warrants, (b) the
sale of shares of Common Stock to the Underwriters in connection with the Public
Offering pursuant to the provisions of the U.S. Underwriting Agreement and the
International Underwriting Agreement, as applicable, (c) if the undersigned is
an individual and is an employee of the Company as of the date of the Prospectus
(other than any Crown Selling Stockholder or Executive Selling Stockholder), the
sale of up to 12% of the shares of Common Stock in the aggregate beneficially
owned by the undersigned as of the date of the Prospectus in compliance with the
registration requirements of the Securities Act pursuant to a valid exemption
therefrom; provided that if the undersigned relies on the exception in clause
(b) above, then the aggregate number of shares that may be sold pursuant to this
clause (c) shall be reduced by the number of shares sold pursuant to clause (b)
above, or (d) transfers, without consideration, of the Common Stock or any
securities convertible into, or exercisable or exchangeable for, Common Stock
(1) if the undersigned is a natural person, to family members of the
undersigned, to one or more trusts established for the benefit of one or more
family members of the undersigned or to trusts established by the undersigned
for charitable purposes or (2) if the undersigned is not a natural person, to
affiliates, members, partners, shareholders or beneficiaries of the undersigned,
provided in each case that each transferee executes and delivers to Lehman
Brothers Inc. an agreement whereby such transferee agrees to be bound by all of
the foregoing terms and provisions.
In addition, the undersigned agrees that the Company may (i) with
respect to any shares of Common Stock for which the undersigned is the record
holder, cause the transfer agent for the Company to note stop-transfer
instructions with respect to such shares of Common Stock consistent with the
foregoing paragraph on the transfer books and records of the Company and (ii)
with respect to any shares of Common Stock for which the undersigned is the
beneficial holder but not the record holder, cause the record holder of such
shares of Common Stock to cause the transfer agent for the Company to note stop-
transfer instructions with respect to such shares of Common Stock consistent
with the foregoing paragraph on the transfer books and records of the Company.
2
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this letter agreement, and that, upon
request, the undersigned will execute any additional documents necessary or
desirable in connection with the enforcement hereof. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and any obligations of the undersigned shall be binding upon the
heirs, personal representatives, successors, and assigns of the undersigned.
Very truly yours,
__________________________
__________________________
(Name - Please Type)
__________________________
__________________________
__________________________
(Address)
__________________________
(Social Security or Taxpayer Identification No.)
3
Exhibit B
---------
FORM OF OPINION FOR ENGLISH COUNSEL FOR CTI
Exhibit C
---------
CERTIFICATE OF CHIEF FINANCIAL OFFICER
The undersigned, Charles C. Green, III, Chief Financial Officer of
Crown Castle International Corp., a Delaware corporation (the "Company"),
pursuant to Section 14(p) of that certain U.S. Underwriting Agreement, dated
August __, 1998 by and among the Company, the Crown Selling Stockholders named
therein, the Executive Selling Stockholders named therein, the Employee Selling
Stockholders named therein, the Sponsor Selling Stockholders named therein,
Lehman Brothers Inc., Credit Suisse First Boston Corporation, Goldman, Sachs &
Co. and Smith Barney Inc., and pursuant to Section 7(j) of that certain
International Underwriting Agreement, dated August __, 1998, by and among the
Company, Lehman Brothers International (Europe), Credit Suisse First Boston
(Europe) Limited, Goldman Sachs International and Smith Barney Inc., does hereby
certify on behalf of the Company with respect to the registration statement on
Form S-1 (File No. 333-57283) relating to the initial public offering of shares
of the Company's common stock, and the Prospectus contained therein dated as of
August __, 1998 and as filed with the U.S. Securities and Exchange Commission
pursuant to Rule 424(b) (the "Prospectus"), that:
1. All data for numbers of tower, rooftop and communication sites
(collectively, "Towers") owned, leased, managed, licensed, marketed, shared
pursuant to contract, or otherwise utilized by or under the management of the
Company and each of its subsidiaries (collectively, "CCIC") or Castle
Transmission Services (Holdings) Ltd and its subsidiaries (collectively, "CTSH"
and, together with CCIC, the "Businesses"), as presented in the Prospectus,
including but not limited to such data presented under the captions identified
on Schedule I hereto (such data, whether presented in tabular or text format,
the "Tower Data"), have been prepared by officers of the Businesses, including
the Chief Financial Officer of the Company (such officers, the "Responsible
Officers").
2. All data for numbers of transmitters owned, leased, managed,
licensed, marketed, shared pursuant to contract, or otherwise utilized by or
under the management of the Businesses, as presented in the Prospectus,
including but not limited to such data presented under the captions identified
on Schedule I hereto (such statements, the "Transmitter Data"), have been
prepared by the Responsible Officers.
3. All financial data for the revenue derived from or related to
Tower Data and Transmitter Data, as presented in the Prospectus, including but
not limited to such data presented under the captions identified on Schedule I
hereto (such statements, the "Tower Revenue Statements") have been prepared by
the Responsible Officers.
4. The statements regarding percentage of population coverage of
analog television transmitters owned and managed by the Company, as presented in
the Prospectus under the captions identified on Schedule I hereto (such
statements, the "Population Coverage Statements") have been prepared by the
Responsible Officers.
5. In collecting and preparing the Tower Data and the Transmitter
Data, the undersigned (i) participated in meetings and conversations with the
Responsible Officers and
1
such officers of subsidiaries of the Company and CTSH responsible for the
management and evaluation of the areas of the Company's operations described in
the Prospectus (the "Subsidiary Officers") and (ii) examined the books and
records of the Company (including its subsidiaries), together with such
schedules prepared by the Responsible Officers and the Subsidiary Officers.
6. The Tower Data and Transmitter Data is compiled by the Subsidiary
Officers and Responsible Officers in a database managed by computer software
sufficiently capable of maintaining and manipulating such data.
7. The Tower Data and Transmitter Data is collected in the database
pursuant to established procedures for tracking the number of Towers owned,
leased, managed, licensed, marketed, shared pursuant to contract, or otherwise
utilized by or under the management of the Company, indicating (i) which
corporate entity of the Businesses exercises control over such Tower or
installed transmitter, (ii) the geographic location of such Tower or installed
transmitter and (iii) in the case of communications sites, the number of towers
located at such site and the status of such site (e.g., site identification,
acquisition, development, construction, commissioning or operational), and such
procedures include:
(a) in the case of Tower ownership, (1) each tower constructed
by the Businesses is entered into the database at the time of commissioning
of such tower and (2) each tower acquired by the Businesses, whether
individually or in connection with the acquisition of a business that owns
such tower, is entered into the database at the time of acquisition, and if
any owned tower is sold to a third party not part of the Businesses, such
tower is removed from the database at the time of such sale;
(b) in the case of Tower leasing or licensing, each tower,
rooftop or communications site leased or licensed to the Businesses is
entered into the database at the time the lease is executed or the license
is granted, and removed from the database at the time the lease is
terminated or license is revoked or terminated; and
(c) in the case of Tower management, marketing, sharing pursuant
to contract or other utilization, each Tower managed, marketed, shared or
utilized by the Businesses is entered into the database at the time the
contract relating to such tower is executed and is removed from the
database at the time the contract is terminated.
8. In preparing the Tower Revenue Statements, the undersigned (i)
participated in meetings and conversations with the Responsible Officers and the
Subsidiary Officers and (ii) examined the books and records of the Company
(including its subsidiaries), together with such schedules prepared by the
Responsible Officers and the Subsidiary Officers.
9. The Tower Revenue Statements were prepared by the Subsidiary
Officers and Responsible Officers based on the Tower Data and the Transmitter
Data and the Company's consolidated financial statements and the financial
statements of the subsidiaries of the Company. The preparation of the Tower
Revenue Statements included:
2
(a) in the case of owned towers, each Tower Revenue Statement
states the actual gross revenue paid to the Company by all tenants and
users of the relevant tower, rooftop or communication site during the
period indicated (and unless specifically indicated otherwise in the
Prospectus, all such Tower Revenue Statements measure actual gross revenue
paid to the Company on a monthly basis); and
(b) in the case of tower leasing, licensing, management or
marketing, each Tower Revenue Statement states the actual net income to the
Company paid by all tenants and users of the relevant tower, rooftop or
communication site during the period indicated (and unless specifically
indicated otherwise in the Prospectus, all such Tower Revenue Statements
measure actual net income paid to the Company on a monthly basis).
10. The Businesses are implementing procedures that will enable the
Company's independent auditors to verify the Tower Data, the Transmitter Data
and the Tower Revenue Statements.
11. The Population Coverage Statements are based on propagation
characteristics of the geographic area surrounding the broadcast transmission
sites and the range capability of the typical transmitters installed by the
Businesses at such sites; and to the knowledge of the undersigned after
reasonable inquiry with the Responsible Officers and the Subsidiary Officers,
such Population Coverage Statements or comparable coverage data have not been
contradicted by the Director General of the U.K. Office of Telecommunications or
any other relevant regulatory agency.
12. The undersigned hereby represents and warrants that the Tower
Data, Transmission Data, the Tower Revenue Statements and the Population
Coverage Statements presented in the Prospectus are true and accurate. The
undersigned hereby further represents and warrants that the procedures outlined
above were undertaken by the Responsible Officers and the Subsidiary Officers
and that the compilation of the data that comprise the Tower Data, Transmission
Data, the Tower Revenue Statements and the Population Coverage Statements was
performed by the Responsible Officers and Subsidiary Officers in good faith and
using such judgment and is typically used by them in the management and
evaluation of the Company's operations.
IN WITNESS WHEREOF, the undersigned has hereunto signed his name on
behalf of the Company this __ day of August, 1998.
By:________________________________
Name: Charles C. Green, III
Title: Chief Financial Officer
3
SCHEDULE I
The Tower Data, Transmitter Data, Tower Revenue Statements and
Population Coverage Statements are principally located under the following
captions in the Prospectus:
. "Prospectus Summary--The Company"
. "Prospectus Summary--Background"
. "Prospectus Summary--Summary Unaudited Pro Forma Financial and Other Data"
and the notes thereto
. "Prospectus Summary--Summary Financial and Other Data of CCIC" and the
notes thereto
. "Prospectus Summary--Summary Financial and Other Data of CTI" and the notes
thereto
. "Risk Factors--Risks Associated with Construction and Acquisition of
Towers"
. "Risk Factors--Reliance on Significant Agreements"
. "Selected Financial and Other Data of CCIC" and the notes thereto
. "Selected Financial and Other Data of Crown"
. "Selected Financial and Other Data of CTI"
. "Management's Discussion and Analysis of Financial Condition and Results of
Operations--Results of Operations"
. "Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources"
. "Industry Background--Trends in the Wireless Communications and
Broadcasting Industries"
. "Business"
. "Business--Background"
. "Business--U.S. Operations"
. "Business--U.K. Operations"