Exhibit 10.30
DATED . ., 1998
CROWN CASTLE INTERNATIONAL CORP. (1)
TELEDIFFUSION DE FRANCE INTERNATIONAL S.A. (2)
CASTLE TRANSMISSION SERVICES (HOLDINGS) LIMITED (3)
____________________________________________
SHAREHOLDERS' AGREEMENT
____________________________________________
ALLEN & OVERY
London
CONTENTS
CLAUSE PAGE
1. Interpretation.......................................................... 1
2. Completion.............................................................. 7
3. The Company's Objectives, Business, Structure and Governane............. 8
4. Governance of Subsidiaries.............................................. 12
5. Accounts, Audit and Reporting........................................... 13
6. Matters Requiring Agreement............................................. 14
7. Guarantees to Third Parties............................................. 19
8. Annual Budget........................................................... 19
9. Transfers............................................................... 19
10. Services Agreement with Tdf; Warrants; Operating Agreement.............. 27
11. Specific Performance.................................................... 28
12. Term.................................................................... 28
13. Warranties.............................................................. 29
14. Confidentiality......................................................... 29
15. Public Announcements.................................................... 30
16. Further Assurances...................................................... 31
17. Other Agreements Among Shareholders..................................... 31
18. Subsidiaries to Acknowledge Agreement................................... 32
19. Compliance by the Company and Subsidiaries.............................. 32
20. Modification............................................................ 32
21. Effect of Waiver........................................................ 32
22. Partial Invalidity...................................................... 32
23. Implied Relationships................................................... 33
24. Costs................................................................... 33
25. Agreement to take Priority.............................................. 33
26. Entire Agreement........................................................ 33
27. Governing Law and Jurisdiction.......................................... 33
28. Notices................................................................. 34
29. Restrictions in the Agreement........................................... 35
30. Counterparts............................................................ 35
SCHEDULES
1. Deed of Adherence....................................................... 36
2. Conditions Precedent to Put and Call Rights............................. 37
Signatories................................................................. 38
THIS SHAREHOLDERS' AGREEMENT is dated . ., 1998 and is made AMONG:
(1) CROWN CASTLE INTERNATIONAL CORP. ("CCIC"), a Delaware corporation;
(2) TELEDIFFUSION DE FRANCE INTERNATIONAL S.A. ("TDFI"), a company incorporated
in France; and
(3) CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD. (the "COMPANY"), a company
incorporated in England and Wales.
WHEREAS
(A) The Company is a private company limited by shares incorporated in England
and Wales with No. 3242381 under the Companies Act 1985 on 27th August,
1996.
(B) At the date hereof the Company has an authorised share capital of
(Pounds)117,800,000 divided into 11,780,000 ordinary shares of lp each and
11,768,220,000 redeemable preference shares of lp each.
(C) On . 1998 CCIC and, inter alia, the Company, Digital Future Investments
B.V. ("TDF SUB"), the Berkshire parties (as defined below) and the Candover
parties (as defined below) entered into a Share Exchange Agreement (the
"SHARE EXCHANGE AGREEMENT") pursuant to which TdF sub, the Berkshire
parties and the Candover parties agreed, subject to the terms and
conditions of such Share Exchange Agreement, to exchange (the "EXCHANGE")
shares in the Company for shares of common stock (or, in the case of TdF
sub, shares of Class A Stock) of CCIC.
(D) CCIC, TdFI and the Company have agreed to enter into this Agreement for
the purposes of regulating the operation and management of the Company and
the relationship between CCIC and TdFI as shareholders of the Company with
effect on and from the Exchange.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 DEFINITIONS:
In this Agreement unless the context otherwise requires:
"ACQUISITION AGREEMENT" means the agreement dated 23rd January, 1997
between The British Broadcasting Corporation and the Company relating to
the sale and purchase of the whole of the issued share capital of CTI;
"AFFILIATE" means, in relation to any Shareholder, any other member of that
Shareholder's Group;
"AGREEMENT" means this agreement as amended from time to time;
"ANALOGUE TRANSMISSION CONTRACT" means the analogue transmission agreement
between the BBC and CTI dated 28th February, 1997;
"BBC" means The British Broadcasting Corporation;
"BBC CONTRACTS" means the Analogue Transmission Contract and the Digital
Transmission Contract;
"BERKSHIRE PARTIES" means Berkshire Fund IV, LP, Berkshire Investors LLC
and Berkshire Partners LLC;
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"BUSINESS COMBINATION" has the meaning given to it in the Governance
Agreement;
"BUSINESS PLAN" means the Current Business Plan of the Company and its
Subsidiaries as amended from time to time in accordance with clause 6.1;
"BUSINESS DAY" means a day (excluding Saturdays) on which banks generally
are open in London for the transaction of normal banking business;
"CANDOVER PARTIES" means Candover Investments plc, Candover (Trustees)
Limited, Candover Partners Limited (as general partner of the Candover 1994
UK Limited Partnership), Candover Partners Limited (as general partner of
the Candover 1994 UK No. 2 Limited Partnership), Candover Partners Limited
(as general partner of Candover 1994 US No. 1 Limited Partnership) and
Candover Partners Limited (as general partner of the Candover 1994 US No. 2
Limited Partnership);
"CCIC SERVICES AGREEMENT" means the services agreement dated 28th February,
1997 between CCIC and the Company;
"CHANGE OF CONTROL" means the occurrence or subsistence of any event or
circumstance described in clause 13.5.1 of the Analogue Transmission
Contract (other than a breach by TdFI of the Commitment Agreement) or
clause 12.7.1 of the Digital Transmission Contract in relation to any
holding company (as defined in section 736 of UK Companies Act 1985) of the
Company or a Business Combination;
"CLASS A STOCK" shall have the meaning given to it in the Governance
Agreement;
"COMMITMENT AGREEMENT" means the Commitment Agreement dated 28th February,
1997 between The British Broadcasting Corporation, CCIC, TdFI and
Telediffusion de France, S.A.;
"COMPANY'S BUSINESS" has the meaning set out in clause 3.2;
"COMPANY CALL RIGHT" shall have the meaning given to it in the Governance
Agreement;
"COMPANY'S CONSTITUTION" means the memorandum and articles of association
of the Company, as amended from time to time;
"COMPANY'S DIRECTORS" means the directors of the Company from time to time;
"COMPANY SHARES" means the Ordinary Shares and the Preference Shares or,
following the conversion of Preference Shares into Ordinary Shares (as
contemplated by clause 2.2(a)), the Ordinary Shares;
"COMMON STOCK" means shares of CCIC's common stock, par value $.01 per
share;
"CONTROLLING SHAREHOLDER" means any Shareholder who holds more than 50 per
cent of the Shares;
"CTI" means Castle Transmission International Limited, a private company
limited by shares incorporated in England and Wales with registered number
3196207;
"CTSH GROUP" means CTSH and its subsidiaries;
"CTSH OPTION" has the meaning given to it in Section 5.01(a) of the
Governance Agreement;
"CURRENT BUSINESS PLAN" means the business plan of the Company and its
Subsidiaries for the current Financial Year in the agreed form;
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"DIGITAL TRANSMISSION CONTRACT" means the digital transmission contract
between the BBC and CTI dated 10th February, 1998;
"DISPOSE" means, in relation to a Share, to transfer, sell, assign,
mortgage, pledge or otherwise encumber that Share or allow any right to
arise under which any person other than the holder thereof may require a
transfer, sale, assignment, mortgage, pledge or other encumbrance of that
Share and "DISPOSAL" shall be construed accordingly;
"FAIR MARKET VALUE" means, as to any property, the cash price at which a
willing seller would sell and a willing buyer would buy such property in an
arms' length negotiated transaction without time constraints;
"FINANCE DOCUMENTS" means all of the documents referred to in the
definition of "Financing Documents" in the Loan Agreement dated 28th
February, 1997 between CTI (1) the Company (2), the lenders listed therein
(3) Credit Suisse First Boston (4) and J.P. Morgan Securities Limited (5)
(as amended on 21st May, 1997) and the Guaranteed Bonds and any document
which replaces the same;
"FINANCIAL YEAR" means a financial year for the purposes of the Companies
Act 1985;
"GOVERNANCE AGREEMENT" means the Governance Agreement of even date between
CCIC and TdFI;
"GROUP" means, in relation to a Shareholder, it, its ultimate holding
company, its subsidiaries and subsidiaries of any such holding company.
"GUARANTEED BONDS" means (Pounds)125,000,000 9 per cent. Guaranteed Bonds
due 2007 issued by Castle Transmission (Finance) PLC and jointly and
severally guaranteed by CTSH and CTI;
"HOLDING COMPANY" shall have the meaning ascribed to it by section 736
Companies Act 1985;
"INTEREST" means, in relation to a Share, any legal or beneficial interest
in that Share or any right or power (whether conditional or unconditional
and whether legally enforceable or otherwise) to exercise control (directly
or indirectly) over the disposal of that Share or over the manner in which
any right to vote in a general meeting attached to that Share is exercised
and "INTERESTED" shall be construed accordingly;
"LIENS" shall mean all liens, security interests, claims, charges and
encumbrances of any kind;
"LONDON STOCK EXCHANGE" means London Stock Exchange Limited;
"OPERATING AGREEMENT" means the operating agreement in the agreed form
between CCIC, the Company, CTI and TdFI;
"OPTION EXERCISE DATE" means the date upon which TdFI gives written notice
to CCIC in accordance with clause 28 of the exercise of its option under
clause 9.6(a)(i);
"ORDINARY SHARES" means ordinary shares of lp each in the capital of the
Company;
"ORIGINAL SHAREHOLDERS' AGREEMENT" means the Shareholders' Agreement dated
23rd January, 1997 in respect of the Company (as amended by a Deed of
Adherence dated 2nd May, 1997, the Share Sale Agreement dated . 1998 and a
Deed of Adherence dated ., 1998) between, inter alia, the Company, CCIC,
TdFI, the Berkshire Parties and the Candover Parties;
"PERMITTED BUSINESS" means the provision of wireless communication
infrastructure services and analogue or digital television and radio
transmission services;
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"PERMITTED TRANSFEREES" means a person to whom Company Shares have been
transferred pursuant to clause 9.2;
"PERSONS ACTING IN CONCERT" means persons who, pursuant to an agreement or
understanding (whether formal or informal), actively co-operate, through
the acquisition by any of them of shares in a party, to obtain a
Controlling Interest in relation to that party, or agree so to co-operate;
"PREFERENCE SHARES" means redeemable preference shares of lp each in the
capital of the Company;
"QUALIFIED" means, in relation to CCIC, for so long as it (when taken
together with its Affiliates and Permitted Transferees) holds 10 per cent.
or more of the equity share capital of the Company from time to time (and
CCIC shall be treated as being Qualified for the purposes of this Agreement
for so long as CCIC shall satisfy such criteria) and, in relation to TdFI,
Qualified means:
(a) at any time prior to TdFI (or any of its Affiliates or Permitted
Transferees) having exchanged its Shares in the company for Class A
Stock of CCIC pursuant to the terms of this Agreement or the
Governance Agreement, that it (when taken together with its Affiliates
and permitted Transferees) holds 10 per cent. or more of the equity
share capital of the Company from time to time (and TdFI shall be
treated as being Qualified for the purposes of this Agreement for so
long as TdFI shall satisfy such criteria); and
(b) if the TDF Rollup shall have occurred pursuant to the Governance
Agreement, that the TDF Group Interest (as defined in the Governance
Agreement) shall not have fallen below 5 per cent; provided that, for
the purposes of clauses 6.1(p) and 6.2(o) only, Qualified means that
the TDF Group Interest shall have fallen below 10.5 per cent;
"TDF PUT RIGHT" shall have the meaning given to it in the Governance
Agreement;
"TDF SERVICES AGREEMENT" means the services agreement (as amended and
restated) in the agreed form to be entered into between TdF and CTI;
"SHAREHOLDERS" means CCIC and TdFI and such other holders of Company Shares
who become parties to this Agreement from time to time;
"SHARES" means any shares in the share capital of the Company;
"SHARE SALE AGREEMENT" means the share sale agreement dated ., 1998, inter
alia, for the sale and purchase of certain shares of the Company entered
into by the Berkshire parties, the Candover parties, TdFI, TdF sub, CCIC
and the Company;
"SPECIAL MAJORITY VOTE OF THE BOARD" shall have the meaning given to it in
the Governance Agreement;
"SUBSIDIARY" or "SUBSIDIARIES" means CTI and any subsidiary of the Company
from time to time;
"SUBSIDIARY" shall have the meaning ascribed to it by section 736 Companies
Act;
"TDF ROLLUP" shall have the meaning given to it in the Governance
Agreement;
"TDF CHANGE OF CONTROL" shall have the meaning given to it in the
Governance Agreement as if references to "the Company" therein were
references to CCIC;
"WARRANTS" means the warrants to subscribe for Shares in accordance with
the Warrant Documentation;
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"WARRANT DOCUMENTATION" means (a) the instrument dated 28th February, 1997
constituting warrants entitling (i) CCIC to subscribe for 515,000 Ordinary
Shares and 514,485,000 Preference Shares and (ii) TdFI to subscribe for
257,500 Ordinary Shares and 257,242,500 Preference Shares and (b) the
certificates dated 28th February, 1997 in respect thereof.
1.2 HEADINGS
Section, clause and other headings are for ease of reference only and shall
not be deemed to form any part of the context or to affect the
interpretation of this Agreement.
1.3 PARTIES
References to parties are references to parties to this Agreement.
1.4 PERSONS
References to persons shall be deemed to include references to individuals,
companies, corporations, firms, partnerships, joint ventures, associations,
organisations, trusts, states or agencies of state, government departments
and local and municipal authorities in each case whether or not having
separate legal personality.
1.5 DEFINED EXPRESSIONS
Expressions defined in this Agreement bear the defined meaning in the whole
of this Agreement including the recitals.
1.6 SECTIONS, CLAUSES, SCHEDULES AND ANNEXURES
References to sections, clauses, schedules annexures are references to
sections and clauses of, and schedules and annexures to this Agreement.
1.7 PLURAL AND SINGULAR
Words importing the singular number shall include the plural and vice
versa.
1.8 NEGATIVE OBLIGATIONS
Any obligation not to do anything shall be deemed to include an obligation
not knowingly to cause that thing to be done.
1.9 GENDER
Words importing one gender shall include the other gender.
1.10 STATUTES AND REGULATIONS
References to a statute include references to regulations, orders or
notices made under or pursuant to such statute or regulations made under
the statute and references to a statute or regulation include references to
all amendments to that statute or regulation whether by subsequent statute
or otherwise and a statute or regulation passed in substitution for the
statute or regulation referred to as incorporating any of the provisions.
1.11 CURRENCY
References to any monetary amount are, unless expressly stated otherwise,
references to an amount in pounds sterling.
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1.12 UNLAWFUL PROVISIONS
Neither the Company nor any Subsidiary shall be bound by any provision of
this Agreement to the extent that it would constitute an unlawful fetter on
any statutory power of the Company and/or any Subsidiary (as the case may
be), but that provision shall remain valid and binding as regards all other
parties to which it is expressed to apply and such provision shall take
effect so as to include an obligation on the part of the Shareholders to
exercise all their respective powers and rights so as to procure, so far as
they are able, that the Company and/or any Subsidiary (as the case may be)
complies with such provision notwithstanding that it is not bound by it.
1.13 References to any documents being "in the agreed form" mean in a form
agreed, and for the purposes of identification signed, by or on behalf of
the Shareholders and the Company.
2. COMPLETION
2.1 Completion shall take place immediately following the execution of this
Agreement (or at such other date and time as the Shareholders may agree in
writing).
2.2 At Completion:
(a) the Shareholders shall procure that special resolutions of the Company
in the agreed form are passed to convert each existing Preference
Share in issue into one Ordinary Share and to adopt the Articles in
the agreed form;
(b) CCIC and TdFI shall procure that a meeting of the Board is held at
which it is resolved that:
(i) each of the share transfers referred to in the Share Exchange
Agreement shall be approved for registration and (subject only
to the transfer being duly stamped, if required) CCIC shall be
registered as the holder of the Shares in the register of
members;
(ii) Charles Green III be appointed as an additional Director by
CCIC;
(iii) Michel Combes be appointed as an additional Director by TdFI;
(iv) Ted B. Miller, Jr. be appointed the chairman of the board of
Directors;
(v) the Company approve the TDF Services Agreement (as amended and
restated) and the Operating Agreement; and
(vi) the Company approve the termination of the agreement referred
to in paragraph (h) below and the termination in accordance
with its terms of the Original Shareholders' Agreement.
(vii) the Company approve the allotment and issue of shares envisaged
by clause 2.2(g) and (h);
(c) CCIC and TdFI shall procure the resignation of Carl Ferenbach and
Douglas Fairservice as Directors of the Company and its Subsidiaries
(if relevant), to take effect at or immediately after Completion;
(d) CCIC and CTI shall enter into a deed of termination to terminate the
CCIC Services Agreement with effect at or immediately after Completion
without compensation to CCIC;
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(e) the Company and TdF shall enter into the TDF Services Agreement (as
amended and restated);
(f) the Company, CCIC and TdFI shall, and the Company shall procure that
CTI shall, enter into the Operating Agreement;
(g) CCIC shall subscribe at 2.5 times par value for such number of
Ordinary Shares of 1p each of CTSH (or the corresponding amount of
Ordinary and Preference Shares in the ratio of 1 Ordinary Shares to
999 Preference shares if the resolution referred to in clause 2.2(a)
has not been passed) as would result in CCIC holding 80 per cent. in
number of the Ordinary Shares (or, as the case may be, the Ordinary
Shares and the Preference Shares and the Company shall allot and issue
such shares);
(h) CCIC shall exercise each of its Warrants; and
(i) the Company, CCIC and TdFI shall enter into a termination agreement in
respect of the Original Shareholders' Agreement with effect at or
immediately after Completion.
2.3 No party shall be obliged to complete any of the transactions or do any of
the things referred to in this clause 2 unless all other transactions and
things are completed in accordance with this clause.
3. THE COMPANY'S OBJECTIVES, BUSINESS, STRUCTURE AND GOVERNANCE
3.1 THE COMPANY'S PRIMARY OBJECTS
The primary objects of the Company under the Original Shareholders'
Agreement were sub-clauses 3.1(a) to 3.1(f) and are under this Agreement
sub-clauses 3.1(c) to 3.1(g):
(a) PURCHASE CTI: enter into and discharge its obligations under the
Acquisition Agreement;
(b) FUNDING PURCHASE: enter into arrangements in respect of the funding of
the acquisition of CTI;
(c) FINANCING CTI: enter into and continue the arrangements contemplated
by the Finance Documents regarding the capitalisation of CTI;
(d) HOLD SHARES IN CTI: hold all the issued shares of CTI subject to the
terms of this Agreement;
(e) MANAGEMENT: undertake generally such actions and matters as are
necessary to manage the Company's shareholding in CTI; and
(f) INCIDENTAL: undertake such other actions, matters or things as may be
necessary to achieve or are incidental to any of the above objects;
and
(g) GUARANTOR: act as guarantor of the Guaranteed Bonds.
3.2 THE COMPANY'S BUSINESS
The Company's Business shall consist of implementing the objects set forth
in clause 3.1. The Company shall carry on no business other than the
Company's Business, except as authorised pursuant to clause 6. l(e).
3.3 THE COMPANY'S STRUCTURE
Except to the extent already the case, the Shareholders agree to proceed
with all due expedition to structure or restructure the Company in
accordance with the following provisions:
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(a) MEMORANDUM AND ARTICLES: the Company shall have a memorandum of
association and articles of association in the agreed form;
(b) NUMBER OF THE COMPANY'S DIRECTORS: the number of Directors of the
Company shall be 6;
(c) SHAREHOLDERS' ENTITLEMENT TO NOMINATE DIRECTORS OF THE COMPANY: the
Shareholders shall exercise their voting entitlements in the Company
to procure that at any time:
(i) CCIC, for so-long as it (when taken together with its Affiliates
and Permitted Transferees) is Qualified, shall have the right to
appoint (and remove) two Directors;
(ii) TdFI, for so long as it (when taken together with its Affiliates
and Permitted Transferees) is Qualified, shall have the right to
appoint (and remove) two Directors.
Directors of the Company appointed pursuant to 3.3(c) shall be
nominated by written notice to each Shareholder. Each Director of the
Company so appointed may be removed and replaced at any time by the
Shareholder entitled to nominate that Director; each Shareholder with
a right to nominate a Director of the Company may assign or waive that
right in whole but not in part in connection with a transfer of the
whole but not some only of the Shareholder's Company Shares pursuant
to clause 9 (provided that no Shareholder (when taken together with
its Affiliates and Permitted Transferees) shall be entitled to appoint
more than two Directors and provided that any transferee shall only be
entitled to appoint a Director if such transferee (when taken together
with its Affiliates and its Permitted Transferees) is Qualified and
each assignor of that right shall give notice to the Directors of the
Company of any such assignment immediately. If a Shareholder removes
from office a Director of the Company nominated by that Shareholder,
that Shareholder shall indemnify the Company against any loss,
liability or cost that the Company may suffer or incur as a result of
any claim by such Director arising out of such removal. The first
Directors nominated pursuant to this clause 3.3(c) shall be as
follows:
-----------------------------------------------------
NAME OF SHAREHOLDER NOMINEE
-----------------------------------------------------
CCIC Ted Miller
-----------------------------------------------------
CCIC Charles Green III
-----------------------------------------------------
TdFI Michel Azibert
-----------------------------------------------------
TdFI Michel Combes
-----------------------------------------------------
(d) ADDITIONAL DIRECTORS OF THE COMPANY: any additional Directors of the
Company shall be nominated and elected, and may be removed and
replaced at any time, by a written notice signed by or on behalf of
every Shareholder who (when taken together with its Affiliates and
Permitted Transferees) is Qualified.
(e) OBSERVERS: each of the Shareholders shall be entitled to nominate one
observer who shall be entitled to attend and speak at meetings of the
Directors of the Company. Such observers shall not be Directors and
shall neither be entitled to vote at meetings of the Directors of the
Company nor have any authority to bind the Company.
(f) MAJORITY RULE: except as provided in this Agreement, resolutions of
the Directors of the Company shall be deemed to be passed if approved
by a majority of the Directors of the Company which includes a
Director nominated by CCIC and a Director nominated by TdFI voting
thereon at a meeting of Directors of the Company at which a Director
nominated by CCIC and a Director nominated by TdFI is present,
provided the meeting is duly convened and held after notice provided
in accordance with clause 3.3(i) (which meeting may be a telephone
meeting conducted as provided in the Articles of
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Association), or approved in writing signed by all the Directors of
the Company in accordance with the Company's Constitution; provided
that, at any time after the TdF Rollup shall have occurred pursuant to
the Governance Agreement and TDF shall have ceased to be Qualified,
for the purposes of any resolution of the board of the Directors of
the Company approving any of the matters referred to in clauses 6.1(p)
or 6.2(o), the majority of the Directors of the Company does not
require a Director nominated by TdFI.
(g) COMMITTEES OF THE DIRECTORS OF THE COMPANY: There shall be established
two committees of the Directors of the Company, pursuant to the
Company's Constitution, as follows:
(i) an Audit Committee consisting of any number of non-executive
Directors of the Company (including the Directors appointed from
time to time under and in accordance with clause 3.3(c)) selected
by the Directors of the Company as a board and having the
functions customary to an Audit Committee; and
(ii) a Remuneration Committee consisting of any number of non-
executive Directors of the Company (including the Directors
appointed from time to time under and in accordance with clause
3.3(c)) selected by the Directors of the Company as a board and
having only advisory powers unless other powers are specifically
delegated by the Directors of the Company as a board.
Such committees shall have the powers delegated by resolution of the
Directors of the Company.
(h) NO ACTION UNTIL DESIGNEE REPLACED: If a Director of the Company
nominated by a Shareholder resigns, is removed or for any other reason
ceases to serve as a Director of the Company and/or as a member of any
committee of the Directors of the Company on which such person had the
right to serve, such Shareholder shall have the right to nominate the
successor of such person, and provided such Shareholder nominates a
successor within five business days after the predecessor ceased to
serve as a Director of the Company or as a member of such committee,
neither the Directors of the Company nor such committee shall take any
action, whether at a meeting of the Directors of the Company (or a
committee thereof) or otherwise, until such successor has been elected
as a Director of the Company or a member of such committee, as the
case may be; provided that in no event may any Shareholder cause a
single delay of more than 10 days by the failure of such Shareholder
to exercise its rights under this clause 3.3(h).
(i) NOTICE OF MEETINGS: No meeting of the Directors of the Company or of a
committee of the Directors of the Company shall normally be convened
on less than 14 days' notice, but such a meeting may be convened by
giving not less than two days' notice if the interests of the Company
would be likely to be adversely affected to a material extent if the
business to be transacted at such meeting was not dealt with as a
matter of urgency or if all the Directors agree. An agenda of the
business to be transacted at such meeting shall be sent with any such
notice and any documents relating to issues to be considered at any
such meeting shall be distributed in advance to all the Directors (or,
in the case of a committee, to the members of that committee) and
their alternates so as to ensure that they are received at least seven
days (or, if less than seven days' notice of such meeting is given, as
soon as practicable) prior to the date fixed for such meeting.
3.4 GOVERNANCE OF THE COMPANY
(a) GENERAL PROVISIONS: The Company shall be operated in accordance with the
Company's Constitution and the terms of this Agreement and any agreement
entered into pursuant to this Agreement and, while effective, pursuant to
the Finance Documents. Each of the Shareholders agrees to perform and
observe all terms and conditions to be observed by them and performed under
any contract or arrangement from time to time subsisting between them and
the Company or
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any of the Subsidiaries, and the Shareholders (in their capacity as
Shareholders) agree to procure (insofar as they are able by the exercise of
such rights and powers) that the Company and the Subsidiaries perform and
observe this Agreement and all such agreements.
(b) DIRECTORS' MEETINGS OF THE COMPANY: Meetings of the Directors of the
Company shall be held at regular intervals as shall be determined by the
Directors of the Company. Such meetings may be carried on in any manner
permitted by the Company's Constitution but the parties shall each use all
reasonable endeavours to ensure that actual meetings at which Directors of
the Company are personally present in one room (barring unscheduled
unavailability) occur not less frequently than at quarterly intervals at
such place or places within the United Kingdom as the Directors of the
Company may from time to time determine. The Company shall meet the
reasonable travel and accommodation expenses of Directors of the Company
attending meetings of Directors of the Company. Any Director of the Company
who is unable to attend a meeting in person shall have the right to attend
the meeting by means of conference telephone.
(c) CHAIRMAN OF THE COMPANY: The chairman of the board of Directors shall be
Ted B. Miller, Jr. or such other person as the Directors of the Company
nominated by CCIC shall determine and any such other person shall be such
person as shall have been approved by a Special Majority Vote of the Board
of CCIC. Such other person appointed pursuant to this clause 3.4(c) shall
be nominated by written notice to each Shareholder together with a
certified copy of the Special Majority Vote of the Board of CCIC. The
chairman of the board of Directors of the Company shall not have a second
or casting vote.
(d) RESPONSIBILITY OF THE DIRECTORS: The Directors of the Company shall be
responsible for the overall guidance and direction of the Company.
(e) CHIEF EXECUTIVE, CHIEF OPERATIVE OFFICER, CHIEF FINANCIAL OFFICER: The
chief executive officer, the chief operating officer and the chief
financial officer of the Company shall be nominated by CCIC and shall be
such persons as shall have been approved by a Special Majority Vote of the
Board of CCIC. Such an officer of the Company appointed pursuant to this
clause 3.4(e) shall be nominated by written notice to each Shareholder
together with a certified copy of the Special Majority Vote of the Board of
CCIC.
[consider including board review and approval of CFO and COO compensation
from members of the Group and allocation of management resources in place
of paragraph 6 of the Operating Agreement as per TdFI's comments at today's
board meeting.]
(f) INDEMNIFICATION OF DIRECTORS: The Company shall indemnify the Directors of
the Company to the greatest extent permitted by applicable law with respect
to any liability, claim or expense incurred arising out of or related to
their service as Directors of the Company and shall obtain Directors and
Officers liability insurance coverage to the extent available on reasonable
terms, as determined by resolution of the Directors of the Company.
4. GOVERNANCE OF SUBSIDIARIES
4.1 Each Director of the Company from time to time shall be appointed as a
director of each Subsidiary of the Company.
4.2 The provisions of clauses 3.3(e), (f), (g), (h), (i) and 3.4(a), (b), (c),
(d) and (e) shall apply, mutatis mutandis, in relation to each Subsidiary
in the same way as they apply in the Company and its Subsidiaries.
11
5. ACCOUNTS, AUDIT AND REPORTING
5.1 FINANCIAL YEAR
Each Financial Year of the Company and each Subsidiary shall end on the
date determined by resolution of the Directors of the Company nominated by
CCIC.
5.2 AUDITORS
The Directors of the Company nominated by CCIC shall have the right to
appoint the auditors to the Company and its Subsidiaries.
5.3 REPORTS ETC.
The Company and each Subsidiary (where applicable) shall:
(a) ADOPT POLICIES: adopt such accounting, administrative, insurance and
other policies and systems consistent with US and UK generally
accepted accounting principles from time to time as the Directors of
the Company nominated by CCIC may from time to time determine;
(b) BOOKS, RECORDS ETC.: maintain accurate and complete books, records,
accounts, statements and documents of its respective operations,
businesses and financial affairs, all of which shall be available to
each of the Shareholders, their respective nominated Directors and
their authorised representatives for the purpose of inspection and
making copies thereof and taking extracts therefrom;
(c) FURNISH REPORTS: prepare and furnish to each of the Shareholders
within 30 days after the end of each month during the term of this
Agreement such financial statements and business reports as may be
available (including, without limitation, copies of any financial
statements and business reports furnished pursuant to the Finance
Documents);
(d) FINANCIAL STATEMENTS: prepare and deliver to each of the Shareholders
(i) consolidated financial statements in respect of the Company and
its Subsidiaries consisting of a balance sheet, statement of revenue
and expenses and statement of changes in financial position; (ii)
copies of any financial statements and business reports furnished
pursuant to the Finance Documents; and (iii) such other statements as
the Directors of the Company may from time to time consider advisable,
in each case prepared in accordance with the generally accepted
accounting principles approved by resolution of the Directors of the
Company nominated by CCIC, as follows:
(i) QUARTERLY STATEMENTS: unaudited quarterly consolidated financial
statements shall be prepared and delivered to each of the
Shareholders promptly after they are available and in any event
within 45 days after the end of each quarter; and
(ii) ANNUAL STATEMENTS: audited annual consolidated financial
statements, accompanied by the report of the Company's auditors
thereon, shall be prepared and delivered to each of the
Shareholders promptly when available and in any event within 90
days after the end of each financial year of the Company,
provided that all or any of the requirements of this clause 5.2(d)
may, to the extent permitted by applicable law, be waived by unanimous
resolution of those Directors of the Company nominated by the
Shareholders; and
(e) KEEP INFORMED: keep the Shareholders informed on a timely basis of all
material developments (as determined by the Directors of the Company)
affecting the conduct of their respective businesses.
12
6. MATTERS REQUIRING AGREEMENT
6.1 MATTERS REQUIRING AGREEMENT OF SHAREHOLDERS - THE COMPANY
The Shareholders shall exercise all voting and other powers of control
available to them directly or indirectly in relation to the Company so as
to procure (insofar as they are able by the exercise of such rights and
powers in accordance with clause 17.4 of this Agreement) that the Company
shall not without the prior agreement in writing of each Shareholder (such
consent to be given or refused within 14 days of a written request for such
approval) which is Qualified:
(a) ACQUISITION AND DISPOSITIONS: acquire or establish any Subsidiary
other than CTI or make any acquisition or disposal which would
constitute a super class 1 transaction or a class 2 transaction if the
share capital of the Company were listed on the London Stock Exchange;
(b) SHARE ISSUES: issue or offer to any person any share or loan capital,
or other securities convertible or exchangeable into share or loan
capital, or allow to arise or subsist any interest in any share or
loan capital, in the Company or any Subsidiary or purchase or redeem
or reorganise any share or loan capital in the Company or any
Subsidiary except Company Shares to be issued pursuant to the terms of
the Warrant Documentation;
(c) SUBSIDIARIES' SHARES: transfer (other than as required by the Finance
Documents) or otherwise dispose of the Shares it holds in each of the
Subsidiaries;
(d) TRANSACTIONS WITH SHAREHOLDERS: enter into a transaction with (other
than with respect to the provision of services or know-how by or to
CTI in accordance with the terms of the TdF Services Agreement and/or
the Operating Agreement) a Shareholder or any Affiliate of a
Shareholder, except as expressly contemplated by this Agreement or
make any variation or amendment (other than of a formal, minor or
technical nature) to any arrangements (whether or not contemplated by
this Agreement) between the Company and any Shareholder or any
Affiliate of any Shareholder;
(e) OTHER BUSINESS: carry on any business other than the Company's
Business;
(f) CAPITAL EXPENDITURE: incur capital expenditure in any financial year
in excess of that which is included in the Company's budget for that
year as approved in writing by all the Shareholders;
(g) BANKING AND OTHER FINANCING FACILITIES: enter into any banking or
other financing facility (other than pursuant to the Finance
Documents) or vary the terms of any banking or other financing
facility;
(h) GUARANTEES AND INDEMNITIES: give any guarantee or indemnity in respect
of the obligations of any other person (other than a wholly-owned
Subsidiary provided that such guarantee or indemnity is expressly
contemplated by the Business Plan, the Finance Documents or the
Acquisition Agreement);
(i) CREATION OF SECURITY: create any mortgage, charge, lien (other than a
lien arising in the ordinary course of trading) or encumbrance on any
assets (other than pursuant to the Finance Documents);
(j) LENDING OF MONEY: lend any money to any other person (other than to a
wholly-owned Subsidiary provided that such loan is expressly
contemplated in the Business Plan or made to finance the payment of
the consideration under the Acquisition Agreement);
(k) JOINT VENTURE ARRANGEMENTS: enter into any arrangements which
constitute a partnership or joint venture with any other person or
persons;
13
(l) LITIGATION: commence or settle any litigation involving a claim
exceeding (Pounds)500,000;
(m) THE COMPANY'S CONSTITUTION: make any alteration to its Constitution;
(n) WINDING UP: pass any resolution for winding up;
(o) RECEIVER OR ADMINISTRATOR: apply for the appointment of a receiver or
an administrator;
(p) DIVIDENDS: declare, make or pay any dividend (interim or final) save
in respect of (i) dividends payable in respect of the Preference
Shares in accordance with the Company's Constitution (but subject
always to the terms of the Financing Documents), and (ii) dividends of
amounts which would not (if paid) unreasonably deplete the financial
resources of the Company having regard to the actual and prospective
obligations, commitments and planned or budgeted expenditure of the
CTSH Group; provided always that the payment of such dividends is
permitted by the terms of the Finance Documents (it being agreed that
the Shareholders will use their best endeavours to ensure that the
Company will make any such dividends in a tax efficient manner for
each Shareholder);
(q) INCENTIVE SCHEMES: establish, approve or make any amendment or
variation to any cash incentive or cash bonus scheme in relation to
any employee of the Company or any subsidiary provided that (I)
neither CCIC nor TdFI shall unreasonably withhold their consent to the
establishment or implementation of cash incentive or cash bonus
schemes of a type which are currently or have in the past been
operated by members of the CTSH Group in accordance with reasonable
business principles for the benefit of employees of the Company or its
Subsidiaries and (ii) it is acknowledged and agreed that the
remuneration of employees of the Company or its Subsidiaries may
continue to be determined and increased in a manner consistent with
past practices of the Company and its Subsidiaries in accordance with
reasonable business principles;
(r) PUBLIC OFFERINGS: take any step to obtain a listing or quotation for
any Shares or any shares of a Subsidiary on any stock exchange, over-
the-counter market or other trading association with a view to
offering any Shares for sale to the public or offer any Shares or any
shares of a Subsidiary for sale to the public; and
(s) OPERATING AGREEMENT: make any amendment to the Operating Agreement,
other than an amendment of a formal, minor or technical nature.
6.2 MATTERS REQUIRING AGREEMENT OF SHAREHOLDERS - SUBSIDIARIES
The Shareholders shall exercise all voting and other powers of control
available to them directly or indirectly in relation to the Company, and
the Company shall exercise all voting and other powers of control available
to it so as to procure (insofar as they are able by the exercise of such
rights and powers in accordance with clause 17.4 of this Agreement) that
each Subsidiary shall not without the prior agreement in writing (such
consent to given or refused within 14 days of a written request for such
approval) of each Shareholder which is Qualified:
(a) ACQUISITIONS AND DISPOSALS: make any acquisition or disposal which
would constitute a super class 1 transaction or a class 2 transaction
if the share capital of that Subsidiary were listed on the London
Stock Exchange;
(b) SHARE ISSUES: issue or offer to any person any shares or loan capital,
or other securities convertible or exchangeable into shares or loan
capital, or allow to arise or subsist any interest in any share or
loan capital, of such Subsidiary or the Company or purchase or redeem
or reorganise any share or loan capital of such Subsidiary or the
Company except for any shares issued or offered to the Company;
14
(c) TRANSACTIONS WITH SHAREHOLDERS: enter into a transaction (other than
with respect to the provision of services or know-how by or to CTI in
accordance with the terms of the TdF Services Agreement and/or the
Operating Agreement) with a Shareholder or any Affiliate of a
Shareholder, except as expressly contemplated by this Agreement or
make any variation or amendment (other than of a formal, minor or
technical nature) to any arrangements (whether or not contemplated by
this Agreement) between a Subsidiary and any Shareholder or any
Affiliate of any Shareholder;
(d) OTHER BUSINESS: (in the case of CTI) carry on any category of business
other than Permitted Business or one which is carried on at the date
of this Agreement;
(e) CAPITAL EXPENDITURE: incur capital expenditure in any financial year
in excess of that which is included in such Subsidiary's budget for
that year as approved in writing by all of the Shareholders;
(f) BANKING AND OTHER FINANCING FACILITIES: enter into any banking or
other financing facility (other than pursuant to the Finance
Documents) or vary the terms of any banking or other financing
facility;
(g) GUARANTEES AND INDEMNITIES: give any guarantee or indemnity in respect
of the obligations of any other person (other than a wholly-owned
Subsidiary provided that such guarantee or indemnity is expressly
contemplated by the Business Plan or the Finance Documents);
(h) CREATION OF SECURITY: create any mortgage, charge, lien (other than a
lien arising in the ordinary course of trading) or encumbrance on any
assets (other than pursuant to the Finance Documents);
(i) LENDING OF MONEY: lend any money to any other person (other than to
the Company);
(j) JOINT VENTURE ARRANGEMENTS: enter into any arrangements which
constitute a partnership or joint venture with any other person or
persons;
(k) LITIGATION: commence or settle any litigation involving a claim
exceeding (Pounds)500,000;
(l) SUBSIDIARY'S CONSTITUTION: make any alteration to any Subsidiary's
memorandum or articles of association.
(m) WINDING UP: pass any resolution for winding up;
(n) RECEIVER OR ADMINISTRATOR: apply for the appointment of a receiver or
an administrator;
(o) DIVIDENDS: declare, make or pay any dividend (interim or final) save
to the extent needed to fund the payment of dividends on Preference
Shares (but subject always to the terms of the Finance Documents), and
save also in respect of dividends of amounts which would not (if paid)
unreasonably deplete the financial resources of the relevant
Subsidiary having regard to the actual and prospective obligations,
commitments and planned or budgeted expenditure of the CTSH Group
provided always that the payment of such dividends is permitted by the
terms of the Finance Documents (it being agreed that the Shareholders
will use their best endeavours to ensure that the Company will make
any such dividends in a tax efficient manner for each Shareholder);
(p) BUSINESS PLAN: reorganise or change the nature or scope of its
business from that as set out in the Business Plan (as amended from
time to time in accordance with clause 8.1);
(q) INCENTIVE SCHEMES: establish, approve or make any amendment or
variation to any cash incentive or cash bonus scheme in relation to
any employee of the Company or any
15
Subsidiary provided that (i) neither CCIC nor TdFI shall unreasonably
withhold their consent to the establishment or implementation of cash
incentive or cash bonus schemes of a type which are currently or have
in the past been operated by members of the CTSH Group in accordance
with reasonable business principles for the benefit of employees of
the Company or its Subsidiaries and (ii) it is acknowledged and agreed
that the remuneration of employees of the Company or its Subsidiaries
may continue to be determined and increased in a manner consistent
with past practices of the Company and its Subsidiaries in accordance
with reasonable business principles ;
(r) PUBLIC OFFERINGS: take any step to obtain a listing or quotation for
any Shares or any shares of a Subsidiary on any stock exchange, over-
the-counter market or other trading association with a view to
offering any Shares or any shares of a Subsidiary for sale to the
public; and
(s) OPERATING AGREEMENT: make any amendment to the Operating Agreement,
other than an amendment of a formal, minor or technical nature.
6.3 MATTERS REQUIRING CONSENT OF PARTICULAR SHAREHOLDER
The Shareholders shall exercise all voting and other powers of control
available to them (directly or indirectly) in relation to the Company so as
to procure (insofar as they are able by the exercise of such rights and
powers) that neither the Company nor any Subsidiary shall do or permit or
suffer to be done any act or thing which will cause the rights of any
Shareholder (in that Shareholder's capacity as a holder of the Company
Shares) to be adversely affected in a manner not applicable to all
Shareholders, without such Shareholder's written consent.
6.4 Each Shareholder agrees that it will procure that entities comprised within
it, its Affiliates and Permitted Transferees shall together ensure that one
entity shall at all times be authorised to exercise the rights of that
Shareholder under this Agreement. The identity of such entity for the time
being shall be notified to all other Shareholders.
6.5 Notwithstanding any other provisions of this Agreement neither the Company
nor any Subsidiary shall issue any share capital or other securities
convertible or exchangeable into share capital if the consequence of such
issue would be that (i) the BBC would thereby become entitled to terminate
the Analogue Transmission Contract pursuant to 13.5 thereof or the Digital
Transmission Contract pursuant to clause 12.7 thereof (unless the BBC shall
have first confirmed in writing that it will not exercise its right of
termination in consequence of such issue), (ii) any licence held by the
Company or any Subsidiary under the Telecommunications Act 1984 or the
Wireless Telegraphy Act 1949 would thereby become capable of being
terminated or revoked in accordance with its terms unless the relevant
regulator shall have first confirmed in writing that the relevant licence
will not be terminated in consequence of the proposed issue (iii) either
CCIC or TdFI would thereby be in breach of the Commitment Agreement (unless
the BBC shall have first consented to the transfer in accordance with the
terms of the Commitment Agreement) or (iv) CCIC and TdFI would cease to
hold the same percentage of Company Shares as they did immediately prior to
such issue at the date of this Agreement being 80 and 20 per cent
respectively.
6.6 If either of the Shareholders shall refuse to give its agreement in respect
of any matter for which its consent is required under clause 6.1 or 6.2 or
if that Shareholder's nominated Directors shall vote against, or abstain in
respect of, a resolution put to the Board of Directors of the Company or
any of its Subsidiaries, then the other Shareholder (notwithstanding the
terms of the Operating Agreement) shall be entitled to pursue the
transaction to which that matter or resolution relates in its own right and
for its own account free from any duty or obligation to any company in the
CTSH Group or any of their respective shareholders.
6.7 The rights of the Directors of the Company nominated by CCIC referred to in
clauses 3.4(c) and (e), and 5.3(a) and (d) cease to be rights of such
Directors and shall become rights of all of the Directors of the Company,
upon CCIC ceasing to be the Controlling Shareholder.
16
7. GUARANTEES TO THIRD PARTIES
No Shareholder shall be under any obligation to give any guarantee or
indemnity or the like on behalf of the Company or any Subsidiary.
8. ANNUAL BUDGET
The Shareholders shall exercise all voting and other powers of control
available to them directly or indirectly in relation to the Company so as
to procure (insofar as they are able by the exercise of such rights and
powers) that, not less than 90 days before the beginning of each Financial
Year, the Company shall draw up an annual budget for the Financial Year
next following in such format as the Shareholders shall prescribe from time
to time (but to include a capital expenditure forecast and a cashflow
forecast) and shall submit each such annual budget and any proposed
amendments to the Business Plan for review and approval to each Shareholder
which is Qualified. Each such annual budget and proposed amendments to the
Business Plan shall be subject to the approval of each Shareholder which is
Qualified. Each such Shareholder undertakes to the other Shareholders to
act in good faith when reviewing each such annual budget and proposed
amendments to the Business Plan and subject always to its rights under
clauses 6.1(b) and 6.2(d) undertakes not unreasonably to withhold its
approval of such document.
9. TRANSFERS
9.1 NO TRANSFERS
Unless prior consent in writing is obtained from each Shareholder which is
Qualified or except as provided in clauses 9.2 or 9.4 to 9.9 or as
contemplated by the Governance Agreement (but in any case subject to
clauses 9.3 and 9.12) no Shareholder may sell, transfer, mortgage, charge
or otherwise dispose of all or any of its Company Shares or any legal or
beneficial interest therein or any rights to subscribe therefor.
Notwithstanding the provisions in clauses 9.1 but subject to clauses 9.3
and 9.12, any Shareholder may transfer its holding of, or beneficial
interest in, Company Shares to a person who is an Affiliate of the
transferor at the date hereof, provided that (a) as a condition of each of
the permitted transfers, the transferee shall be required to comply with
clause 9.12, (b) where Company Shares have been transferred from a
Shareholder to an Affiliate and subsequently the transferee ceases to be an
Affiliate of that Shareholder, then the Shareholder concerned shall procure
that such Affiliate shall forthwith transfer such Company Shares back to
the original Shareholder and (c) each Shareholder agrees not to effect
transfers or changes in such Shareholder's Group in such a manner as to
frustrate the intent of this clause 9.2, which is to permit transfers only
to and holdings by related persons and entities. For the purposes of
clauses 9.4 to 9.9 reference to TdFI shall be deemed to include TdFI and
its Affiliates and Permitted Transferees and to CCIC shall be deemed to
include CCIC and its Affiliates and Permitted Transferees.
9.3 CHANGE OF CONTROL AND STAPLING
Notwithstanding any other provisions of this Agreement:
(a) no Shareholder shall be entitled to transfer or otherwise dispose of
an interest in any Company Shares if the consequence of such transfer
or disposal would be that (i) the BBC would thereby become entitled to
terminate the Analogue Transmission Contract pursuant to clause 13.5
thereof or the Digital Transmission Contract pursuant to clause 12.7
thereof (unless the BBC shall have first confirmed in writing that it
will not exercise its right of termination in consequence of such
transfer or disposal), (ii) any licence held by the Company or any
Subsidiary under the Telecommunications Act 1984 or the Wireless
17
Telegraphy Act 1949 would thereby become capable of being terminated
or revoked in accordance with its terms unless the relevant regulator
shall have confirmed in writing that the relevant licence will not be
terminated in consequence of the proposed transfer or disposal or
(iii) either CCIC or TdFI would thereby be in breach of the Commitment
Agreement (unless the BBC shall have first consented to the transfer
in accordance with the terms and conditions of the Commitment
Agreement); and
(b) at any time prior to the conversion of Preference Shares into Ordinary
Shares (as contemplated by clause 2.2(a), Company Shares may only be
transferred or otherwise disposed of in tranches of 1,000 Company
Shares, comprising 1 Ordinary Share and 999 Preference Shares (or,
following the redemption of any Preference Shares, in such proportion
as the aggregate number of Ordinary Shares then in issue bears to the
aggregate number of Preference Shares then in issue).
9.4 PRE-EMPTION RIGHTS
(a) A Shareholder may transfer its Shares and Warrants at any time after
whichever is the later of (i) the second anniversary of this Agreement or
(ii) the expiry of the period for the completion of the TDF Put Right or,
as the case may be, the Company Call Right, in accordance with the
provisions of this clause 9.4. Subject to clauses 9.2, 9.3, 9.5 and 9.12,
if a Shareholder (for the purposes of this clause 9.4, the "SELLING
SHAREHOLDER") wishes to transfer all (but not part of) its Shares and
Warrants in the Company (collectively the "VENDOR INTEREST") it shall give
to the other Shareholder notice in writing of such desire (for the purposes
of this clause 9.4 a "TRANSFER NOTICE"). A Selling Shareholder may only
serve a Transfer Notice if it has first agreed (on a subject to contract
basis) the material terms relating to that transfer (including a cash
price) for the Vendor Interest with a bona fide third party purchaser. A
Transfer Notice shall specify the name of the person (the "PROPOSED
PURCHASER") to whom the Selling Shareholder proposes to transfer the Vendor
Interest (any shares comprised in the Vendor Interest being for the
purposes of this clause 9.4 referred to as the "SALE SHARES" and, as
applicable, any Warrants referred to as "SALE WARRANTS") and the cash price
per Sale Share and, as applicable, the cash price per Sale Warrant at which
the Selling Shareholder proposes to so transfer (the "SALE PRICE").
(b) If the other Shareholder shall give notice to the Selling Shareholder that
it wishes to purchase the Sale Shares and, as applicable, the Sale Warrants
at the Sale Price on or before the date which falls 30 days after such
notice (the date on which the other Shareholder gives such notice being
referred to as the "ACCEPTANCE DATE") of the date of receipt of the
Transfer Notice by the other Shareholder, the Selling Shareholder shall be
bound upon receipt of the Sale Price to transfer the Sale Shares and, as
applicable, Sale Warrants to the other Shareholder and the other
Shareholder shall be bound to purchase the Sale Warrants at the Sale Price.
(c) If the other Shareholder shall notify the Selling Shareholder that it is
not willing to purchase all of the Sale Shares and, as applicable, the Sale
Warrants at the Sale Price pursuant to the foregoing provisions of this
clause 9.4 or the other Shareholder fails to give notice to the Selling
Shareholder in accordance with clause 9.4(b), then in the event that the
Selling Shareholder wishes to transfer the Sale Shares and, as applicable,
the Sale Warrants the Selling Shareholder shall not be obliged to sell any
of the Sales Shares or, as applicable, the Sale Warrants to the other
Shareholder and shall, subject to clause 9.5, be at liberty at any time
within 6 months after the Acceptance Date to sell and transfer all (but not
part of) the Sale Shares and, as applicable, the Sale Warrants to the
person whose name was specified in the Transfer Notice at a cash price not
being less than the Sale Price.
(d) Subject to clause 9.4(e), he closing of any sale of Sale Shares and, as
applicable, Sale Warrants pursuant to this clause 9.4 shall, subject to the
satisfaction of the conditions precedent set out in Schedule 2, take place
on any Business Day within 6 months after the Acceptance Date as nominated
by the Selling Shareholder (or, if later, such date which is the second
Business Day after the date on which such conditions shall have been
satisfied) at a time and place specified by the Selling Shareholder by not
less than 14 days' notice in writing. On the closing date, the
18
Selling Shareholder shall deliver (i) duly executed transfers in respect of
such Sale Shares and, as applicable, Sale Warrants and the share and, as
applicable, warrant certificate(s) in respect thereof (which Sale Shares
and Sale Warrants shall be sold free and clear of any Liens) and (ii) such
other documents, including evidence of ownership and authority, as the
other Shareholder may reasonably request, against which the other
Shareholder shall pay the Sale Price. In connection with such closing, the
Selling Shareholder and the other Shareholder shall also provide such other
customary closing certificate and opinions as the other Shareholder or, as
the case may be, the Selling Shareholder may reasonably request.
The sale of any shares under the above provisions of this clause shall
comprise the entire legal and beneficial ownership of the Sale Shares and,
as applicable, Sale Warrants in question with a full title guarantee
covenant.
(e) Notwithstanding clause 9.4(d), if CCIC is not the Selling Shareholder, CCIC
shall, at its option, be entitled to discharge the Sale Price by issuing to
the Selling Shareholder (instead of cash) such number of shares of Common
Stock (the "TDFI PRE-EMPTION SHARES") as have an aggregate price equal to
the Sale Price divided by the weighted average price per share of Common
Stock over the five trading days on the principal stock exchange on which
such Common Stock was traded immediately preceding the closing of the sale
of the Sale Shares and the Sale Warrants (discounted by 15 per cent.). If
CCIC so elects, CCIC shall deliver to TdFI at the closing of the sale of
the Sale Shares and the Sale Warrants the TdFI Pre-emption Shares (and
certificates in respect thereof) registered in the name of TdFI (or, as it
may require, its nominees or Affiliates). The provisions of clause 9.7(e)
and (d) shall apply, mutatis mutandis, in respect of the TdFI Pre-emption
Shares.
9.5 TAKE ALONG RIGHTS
(a) Subject to clauses 9.2 and 9.3, no sale or transfer (whether by one or by a
series of transactions) to a person or its Affiliates or anyone acting in
concert with that person of any Shares and, as applicable, Warrants (the
"SPECIFIED SHARES") in the Company held by a Selling Shareholder (as
defined in clause 9.4) (other than a sale or transfer to a Shareholder)
shall be made or registered without the prior consent of the other
Shareholder unless, before such sale or transfer is made, the proposed
transferee has irrevocably and unconditionally offered to purchase all of
the Shares and, as applicable, Warrants in the Company held by the other
Shareholder for the time being at the Specified Price and otherwise on the
same terms (including as to the time of completion and the manner of
payment) as the proposed transferee has offered to purchase the Specified
Shares.
(b) In this clause 9.5, the expression the "SPECIFIED PRICE" shall mean a
consideration for each of the Shares and Warrants at least equal to the
aggregate of that offered or paid or payable by the proposed transferee for
each of the Specified Shares. For the purposes of this clause, the
consideration payable for such of the Specified Shares shall include any
amount received or receivable by the holder of the Specified Shares which,
having regard to the substance of the transaction as a whole, can
reasonably be regarded as an addition to the price paid or payable for each
of the Specified Shares and, in the event of any disagreement about the
calculation of the Specified Price, its calculation shall be referred to
the auditors of the Company within seven days of the dispute arising
(acting as experts and not as arbitrators) whose decision with respect to
the Specified Price shall be final and binding on the parties. The parties
shall give all reasonable assistance to the auditors of the Company in
verifying the Specified Price, including, without limitation, the
disclosure of all relevant documentation containing the terms of the
transaction relating to the proposed sale of the Specified Shares.
(c) The sale of any Shares and Warrants under the above provisions of this
clause shall comprise the entire legal and beneficial ownership of the
Shares and Warrants in question, with a full title guarantee covenant.
9.6 TDFI'S RIGHTS ON CHANGE OF CONTROL
(a) CHANGE OF CONTROL
19
(i) CCIC agrees that if the TDF Rollup shall not have been consummated on or
prior to the second anniversary of the date of this Agreement or, if
earlier, if TdFI shall cease to be Qualified (as determined in accordance
with the Governance Agreement) TdFI shall have the option to require CCIC
to acquire all, but not less than all, of the Shares and the Warrants
legally or beneficially owned or held by TdFI (the "TDFI INTEREST") for
cash in an amount equal to the Fair Market Value (as determined in
accordance with the procedures set forth in clause 9.6(b)) of the TdFI
Interest at any time in the event of a Change of Control (the "CHANGE IN
CONTROL OPTION").
(ii) The Change of Control Option may be exercised by TdFI serving written
notice (a "CHANGE OF CONTROL NOTICE") within 45 days of TdFI becoming aware
on reasonable grounds of a Change of Control in accordance with clause 28.
(b) The valuation procedures referred to in clause 9.6(a) shall be as follows.
Each of CCIC and TdFI shall negotiate in good faith to determine the Fair
Market Value per share and per warrant of the TdFI Shares Interest (the
"CTSH PER SHARE/WARRANT VALUE") within 30 days following the delivery by
TdFI to CCIC of the Change of Control Notice. If CCIC and TdFI do not
agree on a CTSH Per Share/Warrant Value within such 30 day period, they
shall, within three days, appoint an independent investment banker of
international stature with its principal office in New York City (the
"APPRAISER") and shall provide such Appraiser with their respective written
determinations of the CTSH Per Share/Warrant Value. Such Appraiser shall
then choose (taking into account all relevant factors but no discount shall
be applied as a result of the termination or potential termination of the
BBC Contracts), as between the written determinations of the CTSH Per
Share/Warrant Value provided by CCIC and TdFI to the Appraiser, the CTSH
Per Share/Warrant Value which most closely approximates, in the expert
opinion of the Appraiser, the Fair Market Value per Share and per Warrant
of the TdFI Interest as of the Option Exercise Date. If the parties are
unable to agree on the selection of such Appraiser within such three-day
period, they shall on such third day so notify the Chairman of the New York
Stock Exchange, Inc., who shall, within five days of such notification,
appoint an investment banker meeting the qualifications set forth above to
serve as the Appraiser. In any case, the Appraiser shall make its decision
with respect to the CTSH Per Share/Warrant Value within ten days of the
date of its engagement and must choose (taking into account all relevant
factors but no discount shall be applied as a result of the termination or
potential termination of the BBC Contracts) a CTSH Per Share/Warrant Value
presented by either of CCIC or TdFI pursuant to their respective written
determinations (i.e. such Appraiser may not select a different value). The
fees and expenses of the Appraiser shall be paid by CCIC.
9.7 TDFI EXIT RIGHT
(a) CCIC agrees that at any time after the earlier to occur of (i) the second
anniversary of the date of this Agreement or (ii) TdFI ceasing to the
Qualified for the purposes of the Governance Agreement, TdFI shall have the
right at any time in its sole discretion, so long as the CTSH Option shall
not have been consummated, (the "TDFI EXIT RIGHT"), upon not less than six
months' notice (the "TDFI EXIT NOTICE") by TdFI to CCIC, to require CCIC to
purchase all, but not less than all, of the Shares and Warrants legally or
beneficially owned or held by TdFI ("the TDFI INTEREST") in exchange for,
in CCIC's sole discretion, (i) that number of shares of Common Stock (the
"TDFI EXIT SHARES") as have an aggregate price equal to the Fair Market
Value (as determined in accordance with the procedures set forth in clause
9.7(e)) of the TdFI Interest divided by the weighted average price per
share of Common Stock over the five trading days on principal stock
exchange on which traded immediately preceding the closing of the TdFI Exit
Right pursuant to clause 9.7(e) (discounted by 15 per cent.), or (ii) cash
in an amount equal to such Fair Market Value (determined as aforesaid) of
the TdFI Interest.
(b) The closing of the TdFI Exit Right shall, subject to the satisfaction of
the conditions precedent set forth in Schedule 2, take place on any
Business Day within 6 months after the date on which CCIC shall have
received the TdFI Exit Notice (or, if later, such date which is the second
Business Day after the date on which such conditions shall have been
satisfied), at a date, time and place specified by CCIC or such other date,
time and place as may be agreed to by TdFI and CCIC. On
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the closing date of the TdFI Exit Right, CCIC shall deliver or, as the case
may be, pay to TdFI, against delivery of (i) duly executed transfers in
respect of the Shares and Warrants legally or beneficially owned or held by
TdFI and the share or warrant certificate(s) in respect thereof (which
Shares and Warrants TdFI undertakes to sell free and clear of all Liens)
and (ii) such other documents, including evidence of ownership and
authority, as CCIC may reasonably request, the TdFI Exit Shares (and
certificates in respect thereof) registered in the name of TdFI (or, as it
may require, its nominees or Affiliates) or, as the case may be, an amount
in cash equal to the Fair Market Value of the TdFI Interest (by
unconditional and irrevocable credit to such bank account as TdFI may
specify for such purpose). In connection with such closing, CCIC and TdFI
shall also provide such other customary closing certificates and opinions
as TdFI or CCIC, as appropriate, may reasonably request.
(c) All TdFI Exit Shares to be issued pursuant to any exercise of the TdFI Exit
Right shall be issued as fully paid and free from all Liens and shall carry
all rights, benefits and advantages attached to the Common Stock except any
right with a record date prior to the date of issue of the TdFI Exit Shares
including, without limitation, the right to any dividend declared but not
paid.
(d) If TdFI shall receive Common Stock pursuant to clause 9.7(b)(i) in respect
of its exercise of the TdFI Exit Right, the Company shall grant TdFI demand
registration rights (the "DEMAND RIGHTS") comparable to those set forth in
Section 4.02 of the Stockholders Agreement with respect to such Common
Stock and "tag along" rights comparable to those set out in section 5.02 in
the Stockholders' Agreement with respect to such Common Stock. TdFI shall
on a disposal of such Common Stock pursuant to the aforementioned Demand
Rights appoint an underwriter reasonably satisfactory to CCIC.
(e) The valuation procedures referred to in clause 9.7(b) shall be as follows.
Each of CCIC and TdFI shall negotiate in good faith to determine the Fair
Market Value per share and per warrant of the TdFI Interest (the "CTSH PER
SHARE/WARRANT VALUE") within 30 days following the delivery by TdFI to CCIC
of the TdFI Exit Notice. If CCIC and TdFI do not agree on a CTSH Per
Share/Warrant Value within such 30 day period, they shall, within three
days, appoint an independent investment banker of international stature
with its principal office in New York City (the "APPRAISER") and shall
provide such Appraiser with their respective written determinations of the
CTSH Per Share/Warrant Value. Such Appraiser shall then choose (taking
into account all relevant factors), as between the written determinations
of the CTSH Per Share/Warrant Value provided by CCIC and TdFI to the
Appraiser, the CTSH Per Share/Warrant Value which most closely
approximates, in the expert opinion of the Appraiser, the Fair Market Value
per Share and per Warrant of the TdFI Interest as of the closing of the
TdFI Exit Right. If the parties are unable to agree on the selection of
such Appraiser within such three-day period, they shall on such third day
so notify the Chairman of the New York Stock Exchange, Inc., who shall,
within five days of such notification, appoint an investment banker meeting
the qualifications set forth above to serve as the Appraiser. In any case,
the Appraiser shall make its decision with respect to the CTSH Per
Share/Warrant Value within ten days of the date of its engagement and must
choose (taking into account all relevant factors) a CTSH Per Share/Warrant
Value presented by either of CCIC or TdFI pursuant to their respective
written determinations (i.e. such Appraiser may not select a different
value). The fees and expenses of the Appraiser shall be paid by CCIC.
(f) The sale of any Shares and Warrants under the above provisions of this
clause shall comprise the entire legal and beneficial interest of the
Shares and the Warrants in question, with a full title guarantee covenant.
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9.8 CCIC DEADLOCK RIGHT
(a) Subject to clause 9.3 and provided that the TdF Rollup shall not have been
consummated, TdFI agrees that CCIC shall have the right (the "CCIC DEADLOCK
RIGHT") to require TdFI to sell all, but not less than all, of the TdFI
Interest in exchange for cash in an amount equal to the Fair Market Value
of the TdFI Interest determined in accordance with the procedures set out
in clause 9.7(e). The CCIC Deadlock Right may be exercised on one occasion
only but shall not be exercisable unless the following conditions shall
have been satisfied:
(i) a period of three years shall have elapsed from the date of this
Agreement; and
(ii) in any consecutive period of six months following the third
anniversary of this Agreement, TdFI shall on three separate occasions
have refused to give its agreement in respect of a matter or matters
relating to Permitted Business or permitted by the Operating
Agreement of the type described in clause 6.1(a), (f), (g), (h), (i),
(j) or (k) or clause 6.2(a), (f), (g), (h), (i), (j) or (p) in each
case relating to any matter or thing relating to Permitted Business
and/or as permitted by the Operating Agreement in circumstances in
which CCIC has given its agreement and in which the matters in
question have been proposed in good faith; and
(iii) TdFI has not elected to withdraw the latest veto giving rise to the
Deadlock Right within 14 Business Days after receipt of the CCIC
Deadlock Right Notice (and during which period TdFI and CCIC agree to
negotiate in good faith with respect to the matter concerned with a
view to reaching agreement or a mutually acceptable compromise with
respect to such matter).
The CCIC Deadlock Right shall only be exercisable by CCIC serving on TdFI a
written notice (the "CCIC DEADLOCK RIGHT NOTICE") stating its intention to
exercise such right unless TdFI withdraws the latest veto giving rise to
the Deadlock Right within 14 Business Days after receipt of such notice,
and only so long as such notice is served on TdFI within 14 Business Days
after condition (ii) above has been satisfied.
(b) The closing of the CCIC Deadlock Right shall, subject to satisfaction of
the conditions precedent set out in Schedule 2, take place on the tenth
Business Day after the date on which TdFI gives notice to CCIC of its
election not to withdraw the latest veto or if no such notice is given the
latest day on which TdFI has the right to withdraw such veto under clause
(a) above (or, if later, such date which is the second Business Day after
the date on which each of such conditions shall have been satisfied), at a
time and place specified by CCIC as such notice or such other date, time
and place as may be agreed by CCIC and TdFI. On the closing date of the
CCIC Deadlock Right, CCIC shall pay to TdFI, against delivery of (i) duly
executed transfers in respect of the Shares and Warrants legally or
beneficially held by TdFI and the share and warrant certificate(s) in
respect thereof (which Shares and Warrants TdFI undertakes to sell free and
clear of all Liens) and (ii) such other documents, including evidence of
ownership and authority, as CCIC may reasonably request, an amount in cash
equal to the Fair Market Value of the TdFI Interest (by unconditional and
irrevocable credit to such bank account as TdFI may specify for such
purpose). In connection with such closing, CCIC and TdFI shall also
provide such other customary closing certificates and opinions as TdFI or,
as the case may be, CCIC may reasonably request.
(c) The sale of any Shares and Warrants under the above provisions of this
clause shall comprise the entire legal and beneficial interest of the
Shares and the Warrants in question, with a full title guarantee covenant.
9.9 CCIC SHOTGUN RIGHT
(a) Provided that the TdF Rollup shall not have been consummated, CCIC may (i)
by not more than 90 and not less than 60 days' notice in writing, expiring
on the fifth anniversary of the date of this Agreement or (ii) at any time
within 45 days of CCIC becoming aware on reasonable grounds of a
22
TdF Change of Control (in each case, the "SHOTGUN NOTICE") offer to TdFI to
acquire the TdFI Interest, in the case of (a)(i), on the fifth anniversary
of the date of this Agreement (or, if such day is not a Business Day, the
first Business Day thereafter) or, in the case of (a)(ii), on the forty-
fifth day after the date of the Shotgun Notice. Such Shotgun Notice shall
specify the cash price per Share and per Warrant at which the offer is made
and shall request TdFI to notify CCIC in writing within 30 days from the
date of the Shotgun Notice:
(i) whether or not TdFI is willing to sell the TdFI Interest; and
(ii) (if TdFI is not so willing) that TdFI (by itself or together with any
other person or persons) is willing to acquire from CCIC all the
Shares and Warrants for the time being held by CCIC at the same price
per Share and per Warrant as is specified in the Shotgun Notice.
(b) If, after the expiry of the 30 day period referred to in clause 9.9(a),
TdFI shall not have given any notice in writing to CCIC in the form
required by clause 9.9(a), TdFI shall be deemed to have accepted the offer
made by CCIC and shall be bound to sell the TdFI Interest at the price
specified in the Shotgun Notice on the date for completion specified in
clause 9.9(a).
(c) If TdFI gives notice to CCIC of its willingness to sell the TdFI Interest
(as contemplated by clause 9.9(a)(i)), TdFI shall be bound to sell the TdFI
Interest at the price specified in the Shotgun Notice given by CCIC on the
date for completion specified in clause 9.9(a).
(d) If TdFI gives notice (the "TDFI NOTICE") to CCIC of its willingness to
purchase all the Shares and Warrants then held by CCIC (as contemplated by
clause 9.9(a)(ii)), CCIC shall be bound to sell such Shares and Warrants at
the price specified in the Shotgun Notice on the date for completion
specified in clause 9.9(a).
(e) The closing of any sale of Shares and Warrants pursuant to this clause 9.9
shall, subject to the satisfaction of the conditions precedent set out in
Schedule 2 to this Agreement, take place at a time and place specified by
CCIC, if CCIC is the purchaser, or by TdFI, if TdFI is the purchaser, by
not less than 15 days' notice in writing. On the closing date, the
Shareholder which is obliged to sell its Shares and Warrants shall deliver
(i) duly executed transfers in respect of such Shares and Warrants and the
share and warrant certificate(s) in respect thereof (which Shares and
Warrants shall be sold free and clear of any Liens) and (ii) such other
documents, including evidence of ownership and authority, as the purchaser
may reasonably request, against which the purchaser shall pay the price
specified in the notice given by CCIC pursuant to clause 9.9(a). In
connection with such closing, CCIC and TdFI shall also provide such other
customary closing certificates as TdFI or, as the case may be, CCIC may
reasonably request.
(f) The sale of any Shares and Warrants under the above provisions of this
clause shall comprise the entire legal and beneficial interest of the
Shares and Warrants in question, with a full title guarantee covenant.
9.10 OTHER OPTIONS
For the avoidance of doubt, the Shareholders confirm that the rights
contained in Section 5 of the Governance Agreement are additional to those
set out in this Agreement.
9.11 LEGENDS ON SHARE CERTIFICATES
All certificates representing Company Shares shall bear the following
legend:
"The shares represented by this Certificate are subject to an agreement
among Castle Transmission Services (Holdings) Limited and its shareholders
which, inter alia, restricts transfer of these shares and in some
circumstances requires the transfer of these shares. Any transfer in
violation of that agreement will be void, and any transferee is required to
become party to that agreement."
23
9.12 ADMISSION OF SHAREHOLDERS
No Shareholder may transfer any Company Shares to any person unless such
person has first executed and delivered to the other Shareholder a deed of
adherence in the form set out in Schedule 1.
9.13 The Company shall have no obligation to register the transfer of any
Company Shares if the proposed transfer does not comply with the provisions
of this clause 9.
9.14 TdFI and CCIC each undertake to the other to use all reasonable endeavours
to obtain any consents or approvals required to give effect to the
provisions of this clause 9 and agree not to take any steps which may
adversely affect the prospects of obtaining any such consents or approvals.
10. SERVICES AGREEMENT WITH TDF; WARRANTS; OPERATING AGREEMENT
10.1 SERVICES AGREEMENT
Each Shareholder shall, in its capacity as shareholder of the Company, pass
resolutions and procure the passing of resolutions by the Directors of CTI
and do everything else necessary (in each case, so far as they are able by
the exercise of their rights and powers as Shareholders so to pass, procure
and/or do) to cause CTI immediately following Completion to enter into and
thereafter to perform its obligations under a services agreement in the
agreed form between CTI and TeleDiffusion de France, S.A. TdFI undertakes
immediately following Completion to procure that TeleDiffusion de France,
S.A. shall enter into and thereafter perform its obligations under the TDF
Services Agreement.
10.2 WARRANTS
Each Shareholder shall, in its capacity as shareholder of the Company, pass
resolutions and procure the passing of resolutions by the Directors of the
Company and do everything else necessary (in each case, so far as they are
able by the exercise of their rights and powers as Shareholders so to pass,
procure and/or do) to cause the Company to execute and thereafter perform
its obligations under the Warrant Documentation provided always that TdFI
may not exercise its Warrants if the effect would be to cause TdFI to have
an interest in more than 20 per cent. of the Company Shares and CCIC may
not exercise its Warrants if the effect would be to cause TdFI to have an
interest in less than 20 per cent. of the Company Shares.
10.3 OPERATING AGREEMENT
Each Shareholder shall, in its capacity as shareholder of the Company, pass
resolutions and procure the passing of resolutions by the Directors of the
Company and CTI and do everything else necessary (in each case, so far as
they are able by the exercise of their rights and powers as Shareholders so
to pass, procure and/or do) to cause the Company and CTI on Completion to
execute and thereafter perform its obligations under the Operating
Agreement.
11. SPECIFIC PERFORMANCE
11.1 The Company Shares cannot be readily purchased or sold in the open market,
and for that reason, among others, the Company and the Shareholders will be
irreparably damaged in the event that this Agreement is not specifically
enforced. Accordingly each Shareholder and the Company agree that specific
performance and injunctive relief would be appropriate remedies in the
event of any breach or threatened breach of this Agreement. Without
limiting the generality of the foregoing, should any controversy arise
concerning a sale or disposition of any Company Shares, an injunction may
be issued restraining any sale or disposition pending the determination of
such controversy, and the resolution thereof shall be enforceable in a
court of equity by a decree of
24
specific performance. The remedies specified in this clause 12.1 shall be
cumulative and not exclusive, and shall be in addition to any other
remedies which the parties may have.
11.2 Each party confirms to each other party that, for the purposes of entering
into the transactions contemplated by this Agreement:
(a) it has entered into such transactions entirely on the basis of its own
assessment of the risks and effect thereof;
(b) save as expressly set out in this Agreement is owed no duty of care or
other obligation by any other party in respect thereof; and
(c) in so far as it is owed any such duty or obligation as referred to in
subparagraph (b) above (whether in contract, tort or otherwise) (save
as expressly set out in this Agreement) by such other party it hereby
waives, to the extent permitted by law, any rights which it may have
in respect of such duty or obligation.
12. TERM
12.1 TERM
This Agreement shall continue in force until the date on which only one
Shareholder remains as a party to this Agreement (in accordance with clause
12.2).
12.2 This Agreement shall cease and determine in respect of a Shareholder, upon
that Shareholder ceasing to be Qualified. Upon TdFI ceasing to be
Qualified after the TDF Rollup, TdFI shall transfer its remaining Ordinary
Share to CCIC at par value and shall (a) deliver to CCIC a duly executed
transfer in respect thereof and the share certificate therefor and (b)
shall cause the directors nominated by TdFI to resign without compensation.
12.3 CERTAIN RIGHTS AND OBLIGATIONS TO SURVIVE
Termination of this Agreement shall in no way affect the operation of
clauses 10, 11, 14, 20, 21, 22, 23, 25, 26, 27 and 28 or any rights of any
Shareholder arising from any happening or event prior to the date of
termination of this Agreement and any cause of action accruing prior to
that date shall survive and be disposed of as though the provisions of this
Agreement continued in full force and effect.
13. WARRANTIES
Each party warrants to the other parties as follows:
(a) POWER TO ENTER INTO AGREEMENT: It has the legal right and power to
enter into this Agreement and to consummate the transactions
contemplated hereby on and subject to the terms and conditions of this
Agreement, and the execution, delivery and performance of this
Agreement by it has been duly and validly authorised and this
Agreement is a valid and binding agreement enforceable in accordance
with its terms.
(b) NO FURTHER AUTHORISATION: No further authorisation, consent or
approval of any person is required by or in relation to it as a
condition to the validity of this Agreement or to give effect to the
transactions contemplated hereby.
25
14. CONFIDENTIALITY
14.1 CONFIDENTIALITY
Subject as provided in clause 14.4 below, all matters relating to this
Agreement and the negotiations relating to this Agreement and all
information acquired or received by any party under or in connection with
this Agreement shall be held confidential during the continuance of this
Agreement, and each party agrees that it shall not divulge any such
confidential information to any third party, without the prior written
approval of all other Shareholders provided that any party may, without
such approval, disclose such matters or information:
(a) ASSIGNEES: to a bona fide intending assignee of such party upon
obtaining a similar undertaking of confidentiality from such intending
assignee;
(b) PROFESSIONALS: to any outside professional consultants upon obtaining
a similar undertaking of confidentiality from such consultants;
(c) BANKS ETC.: to any bank or financial institution from whom such party
is seeking to obtain finance, upon obtaining a similar undertaking of
confidentiality from such bank or institution;
(d) PUBLIC DOMAIN: to the extent that the same has become generally
available to the public other than as a result of unauthorised
disclosure by a party;
(e) PARTNERS: in the case of a Shareholder which is a partnership, to the
Shareholder's constituent partners; and
(f) LAW/LISTING REGULATIONS: to persons or the general public if
disclosure to such persons or the general public is required to comply
with any applicable law or regulation of any country or the rules or
regulations of the London Stock Exchange or any other exchange or
market on which securities of a Shareholder or the parent corporation
of a Shareholder are quoted, provided that any such information
disclosed pursuant to this paragraph (f) shall be disclosed only after
consultation with the other parties unless such consultation is
prohibited or the time limits within which such disclosure must be
made are such that consultation is impracticable.
14.2 EMPLOYEES ETC.
Each party shall use its reasonable endeavours to ensure that those of its
employees, agents, contractors and partners who are at any time in
possession of confidential information of a kind referred to in clause 16.1
and the employees, agents and contractors of the Company and each of the
Subsidiaries do not disclose or suffer or permit the disclosure of the
same.
14.3 THE COMPANY'S CONFIDENTIALITY OBLIGATION
The Company shall (and the Company shall procure that each of the
Subsidiaries shall) observe a similar obligation of confidence in favour of
each of the parties to this Agreement.
14.4 Any Shareholder may communicate any information received by it pursuant to
this Agreement, and the Director nominated by it pursuant to clause 3.3(c)
may communicate any information received by him pursuant to this Agreement
or otherwise in his capacity as director of the Company, to that
Shareholder. Any Shareholder may communicate any such information (other
than information which relates to the business or affairs of a Shareholder
or its Affiliates) to any company which is its subsidiary or holding
company or a subsidiary of its ultimate holding company or to its manager
or investment or other professional adviser or any person or persons on
behalf of whom it holds Company Shares subject to the obligations set out
in clause 14.2;
26
provided that nothing in this Agreement shall require such disclosure
unless the Director's fiduciary duty to the Company or any of its
Subsidiaries would be breached as a result.
15. PUBLIC ANNOUNCEMENTS
No party shall issue or make any public announcements or statement
regarding this Agreement, the Company's or any Subsidiary's Business or its
involvement in the Company or with any Subsidiary unless prior thereto such
party furnishes all Shareholders with a copy of such announcement or
statement and obtains the approval of the other Shareholders which approval
shall not be unreasonably withheld provided that, notwithstanding any
failure to obtain approval, no party shall be prohibited from issuing or
making any such public announcement or statement if it is necessary to do
so in order to comply with any applicable law or regulation of any country
or the rules or regulations of the London Stock Exchange or any other
exchange or market on which securities of a party are quoted, it being
recognised, however that the parties will endeavour to ensure that any such
public announcements or statements are made contemporaneously.
16. FURTHER ASSURANCES
The parties shall each execute and deliver such further and other documents
and instruments and do such further and other things as may be necessary to
implement and carry out the intent of this Agreement.
17. OTHER AGREEMENTS AMONG SHAREHOLDERS
17.1 NO EXISTING AGREEMENTS
Each of the Shareholders represents and warrants that as of the execution
of this Agreement it is not party to any written or other enforceable
agreement with any other Shareholder with respect to the subject matter of
this Agreement, except for this Agreement.
17.2 DISCLOSURE OF FUTURE AGREEMENTS
Each of the Shareholders agrees that it will not enter into any written or
other enforceable agreement with any other Shareholder with respect to the
subject matter of this Agreement without first obtaining the prior written
approval of all of the Shareholders.
17.3 COMPETITIVE BIDDING
Each of the Shareholders agrees that if it or any of its Affiliates bids or
intends to bid for any contract or project in competition with the Company
or CTI, then:
(a) it will promptly disclose that fact to the other Shareholders; and
(b) the Company, CTI and the other Shareholders will be entitled to
withhold from that Shareholder and its Group and its nominated
Director any confidential information relating to the proposed bid for
that contract or project by the Company or CTI.
17.4 CONFLICTS INVOLVING A SHAREHOLDER
Each Shareholder agrees that neither it, any of its Affiliates, any of its
Permitted Transferees nor its nominated Director will be entitled to
participate in decisions (but shall be entitled to participate in
discussions) of the Directors of the Company or any Subsidiary involving:
(a) any claim or prospective legal proceedings by the Company or any
Subsidiary against that Shareholder or any of its Affiliates;
27
(b) any claim or prospective legal proceedings by that Shareholder or any
of its Affiliates against the Company or any Subsidiary;
(c) any bid by the Company or any Subsidiary for any contract or project
in respect of which that Shareholder or any of its Affiliates intends
to bid in competition with the Company or any Subsidiary; and
(d) any transaction or proposed transaction between the Company or a
Subsidiary and a Shareholder or an Affiliate of a Shareholder.
In relation to any of the circumstances set out in clause 17.4(a), (b), (c)
or (d), the Company, any Subsidiary and the other Shareholders shall be
entitled to withhold from that Shareholder and its Group and its nominated
Director any confidential information relating thereto.
18. SUBSIDIARIES TO ACKNOWLEDGE AGREEMENT
The Shareholders (in their capacity as shareholders of the Company) and the
Company will procure Subsidiaries to acknowledge the provisions hereof and
to agree to be bound by the same to the extent applicable, by execution of
deeds of adherence in a form approved by resolution of the Directors of the
Company.
19. COMPLIANCE BY THE COMPANY AND SUBSIDIARIES
The Shareholders each undertake (in their capacity as Shareholders) to:
(a) EXERCISE VOTING RIGHTS: exercise the voting rights attributable to the
Company Shares which they hold; and
(b) CAUSE DIRECTORS TO VOTE: cause the Directors of the Company and the
directors of each of the Subsidiaries nominated by them respectively
to vote,
to ensure that the Company and each of the Subsidiaries operate in
accordance with the provisions of this Agreement and the Finance Documents
and so as to give full effect to the terms of this Agreement and the
Finance Documents.
20. MODIFICATION
No purported variation of this Agreement shall be effective unless made in
writing and agreed by all the Shareholders.
21. EFFECT OF WAIVER
No waiver by any party of any default in the strict and literal performance
or compliance with any provision, condition or requirement herein shall be
deemed to be a waiver of strict and literal performance of and compliance
with any other provision, condition or requirement herein nor to be a
waiver of or in any manner release any other party from strict compliance
with any provision, condition or requirement in the future. Nor shall any
delay or omission by any party to exercise any right hereunder in any
manner impair the exercise of any such right accruing to such party
thereafter. Except when otherwise expressly stated therein, no remedy
expressly granted herein to any party shall exclude or be deemed to exclude
any other remedy which would otherwise be available.
22. PARTIAL INVALIDITY
If any of the provisions of this Agreement is or becomes invalid, illegal
or unenforceable, the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired. The parties shall
nevertheless negotiate in good faith in order to agree the terms of a
28
mutually satisfactory provision, achieving as nearly as possible the same
commercial effect to be substituted for the provision so found to be void
or unenforceable.
23. IMPLIED RELATIONSHIPS
Nothing contained in this Agreement shall be deemed or constituted to
constitute any party a partner, agent or representative of any other party
or to create any trust or partnership. No party shall have the authority
to act for or to incur any obligation on behalf of any other party except
as expressly provided in this Agreement.
24. COSTS
Save as provided in the Share Exchange Agreement, all costs incurred by any
party in connection with this Agreement shall be borne by that party.
25. AGREEMENT TO TAKE PRIORITY
In the event of any conflict between the provisions of this Agreement and,
as the case may be, the provisions of the Company's Constitution or the
memorandum and articles of association of any Subsidiary, the provisions of
this Agreement shall take priority and apply to the exclusion of the
relevant provisions of the Company's Constitution or the memorandum and
articles of association of any Subsidiary, as the case may be. The parties
shall exercise all voting and other rights and powers available to them so
as to give effect to the provisions of this Agreement and shall also (if
necessary) procure any required amendment to the Company's Constitution or
the memorandum and articles of association of any Subsidiary as may be
necessary. The parties agree that the rights of CCIC and TdFI under this
Agreement, the Governance Agreement and the Stockholders Agreement are
separate, cumulative rights independent of one another.
26. ENTIRE AGREEMENT
This Agreement (together with the Transaction Documents (as defined in the
Share Exchange Agreement), the Financing Documents, the Services Agreement
and the Operating Agreement) set out the entire agreement and understanding
between the parties with respect to the subject matter hereof and
supersedes any prior communication or correspondence with respect to the
subject matter hereof. It is agreed that:
(a) no party has entered into this Agreement in reliance upon any
representation, warranty or undertaking of any other party which is
not expressly set out or referred to in this Agreement;
(b) no party shall have any remedy in respect of misrepresentation or
untrue statement made by any other party unless and to the extent that
a claim lies for breach of warranty under this Agreement;
(c) this clause shall not exclude any liability for fraudulent
misrepresentation.
27. GOVERNING LAW AND JURISDICTION
27.1 This Agreement shall be governed by and construed and interpreted in
accordance with the laws of England.
27.2 Each of the Shareholders (for itself and on behalf of its respective
holding and subsidiary companies and the directors, employees and agents of
each of them) agrees that the English Courts shall have exclusive
jurisdiction to hear and decide any and all claims, disputes, complaints,
actions or proceedings ("CLAIMS OR PROCEEDINGS"), whether in contract or
tort, which may arise at any time out of or in connection with any of the
matters referred to in this Agreement, including, but not limited to, any
Claim or Proceeding asserting dishonesty, improper or illegal conduct or
breach of trust or
29
duty or based on the effects of any of those matters in any jurisdiction
and any Claim or Proceedings which may be material to any of the
Shareholders but of which any of the Shareholders is unaware or does not
suspect exists and for this purpose each of the Shareholders irrevocably
submits to the exclusive jurisdiction of the English Courts.
27.3 CCIC hereby irrevocably authorises and appoints Norose Notices Limited
(AMC/99/Z865000) (for the attention of the Director of Administration) at
the address of its registered office for the time being or such other
person resident in England as it may by notice to all other parties
substitute) to accept service of all legal process arising out of or
connected with this Agreement and service on Norose Notices Limited (or
such substitute) shall be deemed to be service on the party concerned.
27.4 TdFI hereby irrevocably authorises and appoints Fleetside Legal
Representative Services Limited (for the attention of Denis Stewart) at the
address of its registered office for the time being (or such other person
resident in England as it may by notice to all other parties substitute) to
accept service of all legal process arising out of or connected with this
Agreement and service on Fleetside Legal Representative Services Limited
(or such substitute) shall be deemed to be service on the party concerned.
28. NOTICES
All notices and other communications required or permitted under this
Agreement shall be in writing and shall be delivered personally, sent by
air courier (in the case of notices given by a party in one jurisdiction to
a party in another), first class pre-paid post (in the case of a notices
given by a party in one jurisdiction to a party in the same jurisdiction),
telexed or sent by facsimile transmission (and promptly confirmed by air
courier service in the case of notices sent from one jurisdiction to
another and by first class pre-paid post in the case of notices sent by a
party in one jurisdiction to another party in the same jurisdiction). Any
such notice shall be deemed given when so delivered personally, telexed or
sent by facsimile transmission or air courier or first class pre-paid post
to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
CCIC: if to CCIC, to:
Crown Castle International Corp.
510 Bering Drive
Suite 500
Houston
Texas TX 77057
Attention: President
Fax 001 713 570 3150
With a copy to:
Norton Rose
Kempson House
Camomile Street
London EC3A 7AN
Attention: Alan Crookes
Fax: 0171 283 6500
TDFI: if to TdFI, to:
TeleDiffusion de France International, S.A.
10 rue d'Oradour-sur-Glane
Paris Cedex 15
75732 France
30
Attention: Michel Azibert
Fax: 00 331 5595 2066
With a copy to:
Allen & Overy
One New Change
London EC4M 9QQ
Attention: Michael Scargill
Fax: 0171 330 9999
THE COMPANY: if to the Company, to:
the Company at its registered office
Attention: Managing Director
29. RESTRICTIONS IN THE AGREEMENT
Notwithstanding any other provision of this Agreement (or any other
agreement which, together with this Agreement, may form part of an
agreement for the purposes of the Restrictive Trade Practices Act 1976
(together the "RTPA AGREEMENT")) the parties hereto agree that they will
not give effect, and will procure that none of their subsidiaries shall
give effect, to any restriction or restrictions contained in the RTPA
Agreement which cause the RTPA Agreement to be registrable under the
Restrictive Trade Practices Act 1976 until one day after particulars of the
RTPA Agreement shall have been furnished to the Director General of Fair
Trading.
30. COUNTERPARTS
This Agreement may, be executed in any number of counterparts with the same
effect as if the signatures to each such counterpart were upon the same
instrument.
IN WITNESS of which this Agreement has been executed.
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SCHEDULE 1
DEED OF ADHERENCE
THIS DEED OF ADHERENCE is made on 199.
BETWEEN:
[insert name of New Shareholder] of [insert name of company] (the "NEW
SHAREHOLDER") in favour of the persons whose names are set out in the schedule
to this deed and is supplemental to the Shareholders' Agreement dated .,
199. between . and others (the "AGREEMENT").
THE PARTIES AGREE AS FOLLOWS:
1. The New Shareholder confirms that it has read a copy of the Agreement and
covenants with each person named in the schedule to this deed to perform
and be bound by all the terms of the Agreement as if the New Shareholder
were named in the Agreement as [CCIC/TdFI] and there shall be substituted
for all references in the Agreement to [CCIC/TdFI] references to the New
Shareholder.
2. This deed is governed by English law.
3. [Include jurisdiction clause and agent for service clause in appropriate
circumstances.]
IN WITNESS whereof this deed has been executed by the New Shareholder and is
intended to be and is hereby delivered on the date first above written.
32
SCHEDULE 2
CONDITIONS PRECEDENT
TO PUT AND CALL RIGHTS
1. The delivery of all notices required by law or regulation in relation to
the transaction and the expiry of all waiting or notice periods in relation
to such notices;
2. The receipt of all governmental and other regulatory consents or
notifications required in relation to the transaction, including, without
limitation, where the grant or the exercise of any of the rights under
clause 9 requires a notification to be made to the European Commission
under the Merger Regulation (4064/89, as amended):
(a) the European Commission issuing a Phase I decision under Article
6(1)(a) or Article 6(1)(b) of the Merger Regulation and not making a
decision under Article 9(1) thereof; or
(b) in respect of the United Kingdom, as follows:
(i) the Office of Fair Trading indicating in terms satisfactory to
the parties, that it is not the intention of the Secretary of
State to refer the acquisition of the shares to the UK Monopolies
and Mergers Commission ("MMC") pursuant to the Fair Trading Act
1973; or
(ii) the Secretary of State accepting undertakings from the buyer of
the shares in lieu of a reference of the said acquisition to the
MMC as aforesaid;
3. The prior written consent of the BBC to the extent required in relation to
the transaction under Analogue Transmission Contract, the Digital
Transmission Contract, the Commitment Agreement and any other agreement
containing substantially similar restrictions and any agreement amending or
replacing the same; and
4. The receipt of any consent required under the Finance Documents in relation
to the transaction or any agreement (whether or not with the same banks)
amending, replacing or refinancing (in whole or in part) the same or any
other agreement providing finance to the CTSH Group.
33
SIGNED for and on behalf of )
CROWN CASTLE INTERNATIONAL )
CORP. )
By )
in the presence of: )
SIGNED for and on behalf of )
TELEDIFFUSION DE FRANCE )
INTERNATIONAL S.A. )
By )
in the presence of: )
SIGNED for and on behalf of )
CASTLE TRANSMISSION SERVICES )
(HOLDINGS) LIMITED )
By )
in the presence of: )