EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
CROWN CASTLE INTERNATIONAL CORP.
The present name of the corporation is Crown Castle International
Corp. The corporation was incorporated under the name "Castle Tower Holding
Corp." by the filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware. This Restated Certificate of
Incorporation of the corporation, which both restates and further amends the
provisions of the corporation's Certificate of Incorporation, was duly adopted
in accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware. The Certificate of Incorporation of
the corporation is hereby amended and restated to read in its entirety as
follows:
ARTICLE I
Name
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The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
Crown Castle International Corp.
ARTICLE II
Address
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The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
ARTICLE III
Purpose
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The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
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ARTICLE IV
Capitalization
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The total number of shares of stock which the Corporation shall have
authority to issue is [ ] ([ ]), consisting of [ ] ([ ]) shares of Preferred
Stock, par value $0.01 per share (hereinafter referred to as "Preferred Stock"),
[ ] ([ ]) shares of Common Stock, par value $0.01 per share (hereinafter
referred to as "Common Stock") and [ ] ([ ]) shares of Class A Common Stock,
par value $0.01 per share (hereinafter referred to as "Class A Common Stock").
The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
A. Undesignated Preferred Stock. The undesignated Preferred Stock
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may be issued from time to time in one or more series. The Board of Directors
is hereby authorized to provide for the issuance of shares of Preferred Stock in
series and, by filing a certificate pursuant to the applicable law of the State
of Delaware (hereinafter referred to as a "Preferred Stock Designation"), to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
1. The designation of the series, which may be by distinguishing
number, letter or title.
2. The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
3. The amounts payable on, and the preferences, if any, of shares of
the series in respect of dividends, and whether such dividends, if any, shall be
cumulative or noncumulative.
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4. Dates at which dividends, if any, shall be payable.
5. The redemption rights and price or prices, if any, for shares of
the series.
6. The terms and amount of any sinking fund provided for the purchase
or redemption of shares of the series.
7. The amounts payable on, and the preferences, if any, of shares of
the series in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation.
8. Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made.
9. Restrictions on the issuance of shares of the same series or of
any other class or series.
10. The voting rights, if any, of the holders of shares of the
series.
B. Common Stock. The holders of shares of Common Stock shall be
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entitled to one vote for each such share upon all questions presented to the
stockholders. The holders of the shares of Common Stock shall at all times,
except as otherwise provided in this Restated Certificate of Incorporation or as
required by law, vote together with the holders of any other class or series of
stock of the Corporation accorded such general voting rights, as one class.
C. Class A Common Stock.
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1. General. The holders of shares of Class A Common Stock shall be
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entitled to one vote for each such share upon all questions presented to the
stockholders, except with respect to the election of Directors by the
Stockholders; provided, however, that the holders of shares of Class A Common
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Stock shall have the right to vote on Directors as set forth in Section C.2 of
this Article IV.
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The holders of the shares of Class A Common Stock shall at all times, except as
otherwise provided in this Restated Certificate of Incorporation (including the
immediately preceding sentence) or as required by applicable law, (i) vote,
together with the holders of shares of Common Stock and any other class or
series of stock of the Corporation accorded such general voting rights, as a
single class and (ii) receive any dividends or distributions declared or paid on
the Common Stock in equal amounts per share and without preference or priority
of either the Common Stock or the Class A Common Stock over the other. Shares of
Class A Common Stock may only be issued by the Corporation to members of the TDF
Group (as hereinafter defined) or to any other person with the approval of the
holders of a majority of the Class A Common Stock outstanding, in each case in
accordance with Section 7.08 of the Governance Agreement (hereinafter as defined
in Section C.7 of this Article IV).
2. Election of Directors.
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(a) General Right of Election. So long as TDF (as hereinafter
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defined) is Qualified (as such term is defined in the Governance
Agreement), holders of shares of Class A Common Stock voting as a separate
class shall have the right to elect two Directors (the "Class A Directors")
to the Board of Directors of the Corporation; provided, however, that if
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TDF is not Qualified, so long as the Ownership Interest (as such term is
defined in the Governance Agreement) of the TDF Group is at least 5%,
holders of Class A Common Stock voting as a separate class shall have the
right to elect one Director to the Board of Directors of the Corporation.
(b) Mandatory Termination and Replacement. Each Class A Director
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shall serve until the next annual meeting of the stockholders and until
such Director's successor has been elected and qualified, subject to such
Director's earlier death, resignation, removal or retirement. Upon (i) the
number of Directors the holders of the Class A Common Stock are entitled to
elect being reduced from two to one Director as a result of TDF no longer
being Qualified, the term of office of one Class A Director then in office
shall terminate forthwith; provided, however, that the selection of which
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Class A Director's term of office shall terminate shall be at the
discretion of a majority of holders of Class A Common Stock, and (ii) the
conversion of all outstanding shares of Class A Common Stock pursuant to
Section C.4 of this
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Article IV, the term of office of all Class A Directors then in office
shall thereupon terminate. The vacancies resulting from any such
termination pursuant to the preceding clauses (i) or (ii) shall be filled
by the remaining Directors then in office acting by majority vote of such
remaining Directors, though less than a quorum. The Directors so elected to
fill such vacancies shall not be treated hereunder or under the By-laws of
the Corporation as Class A Directors.
(c) Replacement. Subject to Section C.2(b) of this Article IV, in
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the case of any vacancy occurring among the Class A Directors, the holders
of Class A Common Stock then outstanding, voting separately as a class may,
either by written consent or at a special meeting of such holders called in
accordance with the By-laws of the Corporation, elect successors to hold
office for the unexpired term(s) of the Director(s) whose place(s) shall be
vacant.
(d) Except as set forth in this Section C.2 of this Article IV, the
holders of Class A Common Stock shall not be entitled to vote in respect of
the election of Directors of the Corporation.
3. Certain Significant Actions. Subject to the terms and conditions
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of the Governance Agreement, the Corporation shall not take any Significant
Action (as such term is defined in the Governance Agreement) without the
approval of the holders of a majority of the Class A Common Stock then
outstanding, voting separately as a single class, either by written consent or
at a special meeting of such holders called in accordance with the By-laws of
the Corporation.
4. Conversion of Class A Common Stock.
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(a) Voluntary Conversion. Each share of Class A Common Stock shall
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be convertible, at the option of its record holder, into one validly issued
fully paid and non-assessable share of Common Stock at any time.
(b) Voluntary Conversion Procedure. At the time of a voluntary
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conversion, the record holder of shares of Class A Common Stock shall
deliver to the principal office of the Corporation or any transfer agent
for shares of Common Stock (i) the certificate or certificates representing
the shares of Class A Common Stock to be converted, duly endorsed in blank
or accompanied by proper instruments of transfer and (ii) written notice to
the Corporation stating that the
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record holder elects to convert such share or shares and stating the name
or names (with addresses) and denominations in which the certificate or
certificates representing the shares of Common Stock issuable upon the
conversion are to be issued and including instructions for the delivery
thereof. Conversion shall be deemed to have been effected at the time when
delivery is made to the Corporation or its transfer agent of such written
notice and the certificate or certificates representing the shares of Class
A Common Stock to be converted, and as of such time each Person named in
such written notice as the Person to whom a certificate representing shares
of Common Stock is to be issued, shall be deemed to be the holder of record
of the number of shares of Common Stock to be evidenced by that
certificate. Upon such delivery, the Corporation or its transfer agent
shall promptly issue and deliver at the stated address of such record
holder of shares of Common Stock a certificate or certificates representing
the number of shares of Common Stock to which such record holder is
entitled by reason of such conversion, and shall cause such shares of
Common Stock to be registered in the name of the record holder.
(c) Automatic Conversion. (i) Subject to paragraph (iii) below, in
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the event of any Transfer (as hereinafter defined) of any share of Class A
Common Stock to any Person other than an Affiliate (as hereinafter defined)
of the TDF Group in accordance with Section 7.08 of the Governance
Agreement, such share of Class A Common Stock shall automatically, without
any further action, convert into one share of Common Stock.
(ii) Each share of Class A Common Stock shall automatically convert
into one share of Common Stock on the first date on which the Ownership
Interest of the TDF Group is less than 5%.
(iii) Notwithstanding anything to the contrary set forth in this
Section C of Article IV, a holder of shares of Class A Common Stock may
pledge such holder's shares of Class A Common Stock to a financial
institution pursuant to a bona fide pledge of such shares of Class A Common
Stock as collateral security for any indebtedness or other obligation of
any Person (the "Pledged Stock") due to the pledgee or its nominee without
any conversion of the Class A Common Stock into Common Stock; provided,
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however, that (A) such shares shall not be voted by or registered in the
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name of the pledgee and shall remain subject to the provisions of
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this Section C.4 and (B) upon any foreclosure, realization or other similar
action by the pledgee, such Pledged Stock shall automatically convert into
shares of Common Stock on a share for share basis unless all right, title
and interest in such Pledged Stock shall be Transferred concurrently by the
pledgee or the purchaser in such foreclosure to an Affiliate.
(iv) The foregoing automatic conversion events described in this
paragraph (c) shall be referred to hereinafter as "Events of Automatic
Conversion." The determination of whether an Event of Automatic Conversion
shall have occurred will be made by the Board of Directors in accordance
with paragraph (h) below.
(d) Automatic Conversion Procedure. Any conversion pursuant to an
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Event of Automatic Conversion shall be deemed to have been effected at the
time the Event of Automatic Conversion occurred (the "Conversion Time").
At the Conversion Time, the certificate or certificates that represented
immediately prior thereto the shares of Class A Common Stock which were so
converted (the "Converted Class A Common Stock") shall, automatically and
without further action, represent the same number of shares of Common
Stock. Holders of Converted Class A Common Stock shall deliver their
certificates, duly endorsed in blank or accompanied by proper instruments
of transfer, to the principal office of the Corporation or the office of
any transfer agent for shares of the Common Stock, together with a notice
setting out the name or names (with addresses) and denominations in which
the certificate or certificates representing such shares of Common Stock
are to be issued and including instructions for delivery thereof. Upon such
delivery, the Corporation or its transfer agent shall promptly issue and
deliver at such stated address to such holder of shares of Common Stock a
certificate or certificates representing the number of shares of Common
Stock to which such holder is entitled by reason of such conversion. The
Person entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such
shares of Common Stock at and as of the Conversion Time, and the rights of
such Person as a holder of shares of Class A Common Stock that have been
converted shall cease and terminate at and as of the Conversion Time, in
each case without regard to any failure by such holder to deliver the
certificates or the notice required by this Section.
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(e) Unconverted Shares; Notice Required. In the event of the
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conversion of less than all the shares of Class A Common Stock evidenced by
a certificate surrendered to the Corporation in accordance with the
procedures of this Section C.4, the Corporation shall execute and deliver
to or upon the written order of the holder of such unconverted shares,
without charge to such holder, a new certificate evidencing the number of
shares of Class A Common Stock not converted.
(f) Retired Shares. Shares of Class A Common Stock that are
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converted into shares of Common Stock as provided herein shall not be re-
issued as shares of Class A Common Stock and shall be retired and canceled.
(g) Reservation. The Corporation shall at all times reserve and keep
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available, out of its authorized and unissued shares of Common Stock, for
the purposes of effecting conversions, such number of duly authorized
shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of Class A Common Stock. All the
shares of Common Stock so issuable shall, when so issued, be duly and
validly issued, fully paid and non-assessable, and free from liens and
charges with respect to such issuance.
(h) Determination of Voting Rights and Events of Automatic
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Conversion. The Board of Directors of the Corporation shall have the power
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to determine by a two-thirds vote of the entire Board of Directors, in good
faith after reasonable inquiry, whether an Event of Automatic Conversion
has occurred with respect to any share of Class A Common Stock. As a
condition to counting the votes cast by any holder of shares of Class A
Common Stock at any annual or special meeting of shareholders or as a
condition to registration of transfer of shares of Class A Common Stock, or
for any other purpose, the Board of Directors, in its discretion, may
require the holder of such shares to furnish such affidavits or other proof
as the Board of Directors reasonably deems necessary or advisable to
determine whether an Event of Automatic Conversion shall have occurred.
(i) Stock Legend. The Corporation shall include on the certificates
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representing the shares of Class A Common Stock a conspicuous legend
referring to the restrictions on transfer and registration of transfer
imposed by this Section C.4.
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(j) Taxes. The issuance of a certificate for shares of Common Stock
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upon conversion of shares of Class A Common Stock shall be made without
charge for any stamp or other similar tax in respect of such issuance.
However, if any such certificate is to be issued in a name other than that
of the holder of the shares of Class A Common Stock converted, the Person
or Persons requesting the issuance thereof shall pay to the Corporation the
amount of any tax which may be payable in respect of any Transfer involved
in such issuance or shall establish to the satisfaction of the Corporation
that such tax has been paid or is not required to be paid.
5. Certain Adjustments. In case the Corporation shall at any time
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(i) pay a dividend or make a distribution on the Common Stock in shares of
Common Stock or other capital stock of the Corporation, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
or (iv) otherwise reclassify the Common Stock, the Class A Common Stock shall be
comparably adjusted.
6. Action by Written Consent. Notwithstanding Article VI, any action
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to be taken at any annual or special meeting of the holders of Class A Common
Stock may be taken without a meeting of such holders in accordance with Section
228 of the General Corporation Law of the State of Delaware.
7. Definitions. For purposes of this Section C of Article IV:
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(a) Affiliate and Associate. "Affiliate" and "Associate", when used
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with reference to any Person (as hereinafter defined), shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the Securities
Exchange Act of 1934, as in effect on the date of this Restated Certificate
of Incorporation.
(b) Beneficial Owner. A Person shall be deemed the "Beneficial
-----------------
Owner" of, and to "Beneficially Own" and to have "Beneficial Ownership" of
(i) any securities that such Person or any of such Person's Affiliates or
Associates is deemed to "beneficially own" within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as in effect on the date of this
Restated Certificate of Incorporation; and (ii) any securities (the
"underlying securities") that such Person or any of such Person's
Affiliates or
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Associates has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (written or oral), or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or
otherwise (it being understood that such Person shall also be deemed to be
the beneficial owner of the securities convertible into or exchangeable for
the underlying securities).
(c) Governance Agreement. The term "Governance Agreement" shall mean
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the Governance Agreement, dated as of [ ], 1998, among the
Corporation, TDF and Digital Future Investments B.V., a copy of which is
attached hereto as Exhibit A.
(d) Nominee. The term "Nominee" shall mean a partnership or other
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entity that is acting as a bona fide nominee for the registration of record
ownership of securities Beneficially Owned by another Person.
(e) Person. The term "Person" means any natural person, corporation,
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association, partnership, limited liability company, organization,
business, other entity, government or political subdivision thereof or
governmental agency.
(f) Stockholders Agreement. The term "Stockholders Agreement" shall
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mean the Stockholders Agreement, dated as of [ ], 1998, among the
Corporation and certain stockholders of the Corporation, a copy of which is
attached hereto as Exhibit B.
(g) TDF. The term "TDF" shall mean TeleDiffusion de France
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International S.A.
(h) TDF Group. The term "TDF Group" shall mean TDF and its
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Affiliates, collectively.
(i) Transfer. The term "Transfer" shall mean any sale, transfer
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(including a transfer made in whole or in part without consideration as a
gift), exchange, assignment, pledge, encumbrance, alienation or any other
disposition or hypothecation of record ownership or of Beneficial Ownership
of any share, whether by merger, operation of law or otherwise; provided,
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however, that (i) a pledge of any share made in accordance with the
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provisions of paragraph (iii) of Section C.4(c) and (ii) a grant of a proxy
with respect to any share to a Person designated by the Board of
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Directors of the Corporation who is soliciting proxies on behalf of the
Corporation shall not be considered a "Transfer"; and provided further that
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in the case of any transferee of record ownership that is a
Nominee, such Transfer of record ownership shall be deemed to be made to
the Person or Persons for whom such Nominee is acting.
8. Liquidation, Dissolution or Winding Up. In the event of any
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voluntary or involuntary liquidation, dissolution or winding up on the
Corporation, after payment of all preferential amounts required to be paid to
the holders of Preferred Stock, the holders of shares of Common Stock and Class
A Common Stock then outstanding shall share ratably in any distribution of the
remaining assets and funds of the Corporation in proportion to the respective
amounts which would otherwise be payable in respect of the shares held by them
upon such distribution if all amounts payable on or with respect to such shares
were paid in full. For this purpose, each share of Class A Common Stock shall be
entitled to receive the amount which would be payable to shares of Common Stock
issued on conversion of such Class A Common Stock if such conversion had
occurred immediately prior to such distribution.
ARTICLE V
By-laws
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In furtherance of, and not in limitation of, the powers conferred by
law and subject to the other provisions of this Restated Certificate of
Incorporation, the Board of Directors is expressly authorized and empowered:
(1) To adopt, amend or repeal the By-laws of the Corporation;
provided, however, that the By-laws adopted by the Board of Directors under
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the powers hereby conferred may be amended or repealed by the Board of
Directors or by the stockholders having voting power with respect thereto,
provided further that the affirmative vote of the holders of at least 80%
of the voting power of the then outstanding Voting Stock (as hereinafter
defined), voting together as a single class, shall be required in order for
the stockholders to alter, amend or repeal any provision of the By-laws or
to adopt any additional By-law; and
(2) from time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the Corporation, or any of them, shall be open to
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inspection of stockholders; and, except as so determined or as expressly
provided in this Restated Certificate of Incorporation or in any Preferred
Stock Designation, no stockholder shall have any right to inspect any
account, book or document of the Corporation other than such rights as may
be conferred by applicable law.
The Corporation may in its By-laws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
ARTICLE VI
Action of Stockholders
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Except as otherwise specified with respect to any series of Preferred
Stock and the Class A Common Stock, any action required or permitted to be taken
by the stockholders of the Corporation must be effected at a duly called annual
or special meeting of stockholders of the Corporation and may not be effected by
any consent in writing in lieu of a meeting of such stockholders.
ARTICLE VII
Board of Directors
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Subject to the rights of the holders of any series of Preferred Stock
to elect additional Directors under specified circumstances, the number of
Directors of the Corporation shall initially be 12 (including the two Directors
to be elected by the holders of the Class A Common Stock) and may hereafter be
changed from time to time solely by the Board of Directors.
Unless and except to the extent that the By-laws of the Corporation
shall so require, the election of Directors of the Corporation need not be by
written ballot.
The Directors, other than those Directors who may be elected by the
holders of any series of Preferred Stock or holders of Class A Common Stock (the
"Non-Classified Directors"), shall be divided into three classes, as nearly
equal in number as possible, initially consisting of 3, 3 and 4 Directors. One
class of Directors initially consisting of 3 Directors shall be initially
elected for a term expiring at the annual meeting of stockholders to be
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held in 1999, another class initially consisting of 3 Directors shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 2000, and another class initially consisting of 4 Directors shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 2001. Upon the termination of the term of any Class A Director or
Directors then in office pursuant to Section C.2(b) or Section C.4 of Article
IV, the number of Directors in one or both, as applicable, of the classes
consisting of three Directors shall be increased by one such that the three
classes of Directors shall consist of 3, 4 and 4 Directors, or 4, 4 and 4
Directors, as applicable. Members of each class shall hold office until their
successors are elected and qualified. At each annual meeting of the stockholders
of the Corporation commencing with the 1999 annual meeting, Directors (other
than Non-Classified Directors) elected to succeed those Directors whose terms
expire shall be elected by a plurality vote at such meeting to hold office for a
term expiring at the third succeeding annual meeting of stockholders after their
election, with each Director to hold office until his or her successor shall
have been duly elected and qualified.
Subject to the rights of the holders of any series of Preferred Stock
or holders of Class A Common Stock, vacancies resulting from death, resignation,
retirement, disqualification, removal from office or other cause, and newly
created Directorships resulting from any increase in the authorized number of
Directors, may be filled only by the affirmative vote of a majority of the
remaining Directors, though less than a quorum of the Board of Directors, and
Directors so chosen shall hold office for a term expiring at the next annual
meeting of stockholders at which the term of office of the class to which they
have been elected expires and until such Director's successor shall have been
duly elected and qualified. No decrease in the number of authorized Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
Except for such additional Directors, if any, as are elected by the
holders of any series of Preferred Stock or holders of Class A Common Stock, any
Director may be removed from office at any time, but only for cause and by the
affirmative vote of the holders of at least 80 percent of the voting power of
the then outstanding Voting Stock (other than the Class A Common Stock), voting
together as a single class. Notwithstanding the foregoing, holders of Class A
Common Stock, voting separately as a class, either by written consent or at a
special meeting of such holders called in accordance with the By-laws of the
Corporation, may remove any Class A Director with or without cause.
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ARTICLE VIII
Indemnification
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Each person who is or was a Director or officer of the Corporation
shall be indemnified by the Corporation to the fullest extent permitted by the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended or any other applicable laws as presently or hereafter in
effect. The Corporation may, by action of the Board of Directors, provide
indemnification to other employees and agents of the Corporation, to directors,
officers, employees or agents of a subsidiary, and to each person serving as a
director, officer, partner, member, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, at the request of the Corporation, with the same scope and effect as
the foregoing indemnification of Directors and officers of the Corporation.
Notwithstanding the foregoing, the Corporation shall be required to indemnify
any person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors or is a proceeding to enforce such person's
claim to indemnification pursuant to the rights granted by this Restated
Certificate of Incorporation or otherwise by the Corporation. Without limiting
the generality of the effect of the foregoing, the Corporation may enter into
one or more agreements with any person which provide for indemnification greater
or different than that provided in this Article VIII. Any amendment or repeal
of this Article VIII shall not adversely affect any right or protection existing
hereunder in respect of any act or omission occurring prior to such amendment or
repeal.
ARTICLE IX
Directors' Liability
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A Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (1) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of the General Corporation Law of the
State of Delaware, or (4) for any transaction from which the Director derived an
improper personal benefit. Any
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amendment or repeal of this Article IX shall not adversely affect any right or
protection of a Director of the Corporation existing hereunder in respect of any
act or omission occurring prior to such amendment or repeal.
If the General Corporation Law of the State of Delaware shall be
amended, to authorize corporate action further eliminating or limiting the
liability of Directors, then a Director of the Corporation, in addition to the
circumstances in which he is not liable immediately prior to such amendment,
shall be free of liability to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended.
ARTICLE X
Stockholder Rights Issuances
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The Board of Directors is hereby authorized to create and issue,
whether or not in connection with the issuance and sale of any of its stock or
other securities or property, rights entitling the holders of securities of the
Corporation to purchase from the Corporation shares of stock or other securities
of the Corporation or any other corporation, recognizing that, under certain
circumstances, the creation and issuance of such rights could have the effect of
discouraging third parties from seeking, or impairing their ability to seek, to
acquire a significant portion of the outstanding securities of the Corporation,
to engage in any transaction which might result in a change of control of the
Corporation or to enter into any agreement, arrangement or understanding with
another party to accomplish the foregoing or for the purpose of acquiring,
holding, voting or disposing of any securities of the Corporation. The times at
which and the terms upon which such rights are to be issued will be determined
by the Board of Directors and set forth in the contracts or instruments that
evidence such rights. The authority of the Board of Directors with respect to
such rights shall include, but not be limited to, determination of the
following:
(A) The initial purchase price per share or other unit of the stock
or other securities or property to be purchased upon exercise of such
rights.
(B) Provisions relating to the times at which and the circumstances
under which such rights may be exercised or sold or otherwise transferred,
either together with or separately from, any other stock or other
securities of the Corporation.
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(C) Provisions which adjust the number or exercise price of such
rights or amount or nature of the stock or other securities or property
receivable upon exercise of such rights in the event of a combination,
split or recapitalization of any stock of the Corporation, a change in
ownership of the Corporation's stock or other securities or a
reorganization, merger, consolidation, sale of assets or other occurrence
relating to the Corporation or any stock of the Corporation, and provisions
restricting the ability of the Corporation to enter into any such
transaction absent an assumption by the other party or parties thereto of
the obligations of the Corporation under such rights.
(D) Provisions which deny the holder of the specified percentage of
the outstanding stock or other securities of the Corporation the right to
exercise such rights and/or cause the rights held by such holder to become
void.
(E) Provisions which permit the Corporation to redeem or exchange
such rights, which redemption or exchange may be within the sole discretion
of the Board of Directors, if the Board of Directors reserves such right to
itself.
(F) The appointment of the rights agent with respect to such rights.
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, in addition to any other vote required by
applicable law, the affirmative vote of at least 80 percent of the voting power
of the then outstanding Voting Stock, voting together as a single class, shall
be required to amend, repeal or adopt any provision inconsistent with this
Article X.
ARTICLE XI
Other Agreements
----------------
Notwithstanding any other provision of this Restated Certificate of
Incorporation, to the extent any provision of the Stockholders Agreement
(attached as Exhibit B) or the Governance Agreement (attached as Exhibit A),
conflict with, modify or alter any provision of this Restated Certificate of
Incorporation, such provision of the Stockholders Agreement or of the Governance
Agreement
17
shall control and be deemed incorporated as part of this Restated
Certificate of Incorporation.
ARTICLE XII
Amendments
----------
Except as may be expressly provided in this Restated Certificate of
Incorporation, the Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, Directors or any other persons whomsoever by and
pursuant to this Restated Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article XII;
provided, however, that any amendment or repeal of Article VIII or Article IX of
- -------- -------
this Restated Certificate of Incorporation shall not adversely affect any right
or protection existing thereunder in respect of any act or omission occurring
prior to such amendment, alteration, change or repeal, and provided further that
no Preferred Stock Designation shall be amended after the issuance of any shares
of the series of Preferred Stock created thereby, except in accordance with the
terms of such Preferred Stock Designation and the requirements of applicable
law.
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, and in addition to approval by the Board of
Directors and any other vote of stockholders required by applicable law, the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall be required
to amend, repeal or adopt any provision inconsistent with paragraph (1) of
Article V, Article VI, Article VII, Article X, Article XI or this second
paragraph of this Article XII; provided, however, that, in addition to approval
-------- -------
by the Board of Directors and any other vote of stockholders required by
applicable law, any such amendment to Article XI or the provisions of this
second paragraph of this Article XII with respect to such Article XI shall, in
addition, require the approval of a majority of the holders the Class A Common
Stock then outstanding, voting as a separate class. For the purposes of this
Restated
18
Certificate of Incorporation, "Voting Stock" shall mean the outstanding shares
of capital stock of the Corporation entitled to vote in a general vote of
stockholders of the Corporation as a single class with shares of Common Stock of
the Corporation, which shares of capital stock shall be deemed to include the
Class A Common Stock. Notwithstanding the foregoing, no amendment to this
Restated Certificate of Incorporation which adversely affects the rights of the
holders of the Class A Common Stock may be effected without the approval of the
holders of a majority of the Class A Common Stock then outstanding.
IN WITNESS WHEREOF, the undersigned has executed this Restated
Certificate of Incorporation on this ___th day of _________, 1998.
CROWN CASTLE INTERNATIONAL CORP.
By:
-------------------------------------------
Name:
Office:
19
EXHIBIT A
[Governance Agreement - See Exhibit 10.28]
20
EXHIBIT B
[Stockholders' Agreement - See Exhibit 10.26]