EXHIBIT 99.4
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT is made and entered into this 1st
day of June, 1999, by and between BELLSOUTH MOBILITY INC, a Georgia corporation
("BMI"), and CROWN CASTLE INTERNATIONAL CORP., a Delaware corporation
("COMPANY").
RECITALS:
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WHEREAS, this Agreement is made pursuant to that certain Agreement to
Sublease dated as of the date hereof (the "Agreement to Sublease"), among BMI,
Company, BellSouth Telecommunications, Inc., Crown Castle South Inc. and certain
transferring entities.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement agree as follows:
SECTION 1. Certain Definitions.
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(a) As used herein, the following terms shall have the following
respective meanings:
"BAM Registration Rights" shall mean the registration rights
granted in respect of the BAM Shares.
"BAM Shares" shall mean the shares of common stock of Crown
Castle International Corp. initially issued pursuant to Formation Agreement
dated as of December 8, 1998 and that constitute Registrable Shares as that term
is defined in the registration rights granted in respect of such shares in such
Formation Agreement.
"Commission" shall mean the U.S. Securities and Exchange
Commission.
The terms "register," "registered" and "registration" refer to
a resale registration effected by preparing and filing a registration statement
in compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Shares" shall mean those shares that are (a) (i)
issued to BMI, any Transferring Entity (as defined in the Agreement to Sublease)
or any BMI Affiliate (as defined in the Agreement to Sublease) pursuant to the
Agreement to Sublease (the "BellSouth Shares") and (ii) any securities issued or
issuable in respect of BellSouth
Shares upon any stock split, stock dividend, distribution, reorganization,
merger, consolidation, consideration, exchange, recapitalization or other
similar event occurring following the date of the Agreement and (b) "restricted
securities" as defined in rule 144(a) (3) under the Securities Act.
"Registration Expenses" shall mean all expenses, other than
Selling Expenses, incurred by Company in complying with Sections 2, 3 and 4
hereof, including without limitation, all registration and filing fees, listing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of insurance and fees and
disbursements of one counsel for the sellers of Registrable Shares.
"Stockholders" shall mean those individuals and entities listed
in Schedule I to the Stockholders Agreement.
"Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the Registrable Securities registered pursuant
to Sections 2, 3 and 4 hereof and, except for the fees and disbursements of one
counsel as included in Registration Expenses, the costs of any counsel retained
by or on behalf of the holders of such Registrable Securities.
"Stockholders Agreement" shall mean the Stockholders Agreement
dated as of the 21st of August, 1998 among Company and each of the Stockholders
listed in Schedule I thereto.
SECTION 2. "Piggy-Back" Registration. If Company at any time proposes to
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register any of its securities under the Securities Act for sale to the public,
whether for its own account or for the account of other security holders or both
(except with respect to registration statements on Forms S-4, S-8 or any
successor or similar forms thereto and other than pursuant to a registration
under Section 3), each such time it will give written notice to all holders of
outstanding Registrable Shares of its intention to do so. Upon the written
request of any such holder, received by Company within twenty (20) days after
the giving of any such notice by Company, to register any of its Registrable
Shares, Company will, except as provided below, cause the Registrable Shares as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed by
Company, all to the extent requisite to permit the sale or other disposition by
the holder of such Registrable Shares so registered. In the event that any
registration pursuant to this Section 2 shall be, in whole or in part, an
underwritten public offering of securities, the number of securities to be
included in such an underwriting may be reduced if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold therein as follows: First,
all persons (other than Company, the requesting holders of Registrable Shares,
the requesting holders of BAM Shares and the requesting
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Stockholders) who have requested shares to be registered shall be reduced in the
manner provided by Company. In the event that the number of shares requested to
be registered after such reduction shall still be in excess of the number of
shares recommended to be registered by the underwriters, then the number of
shares shall be further reduced pro rata among the requesting holders of
Registrable Shares according to the number of shares requested by each such
holder to be registered. In the event the number of shares requested to be
registered after such reduction shall still be in excess of the number of shares
recommended to be registered by the underwriters then the number of shares shall
be reduced among the requesting holders of BAM Shares in accordance with the BAM
Registration Rights. In the event the number of shares requested to be
registered after such reduction shall still be in excess of the number of shares
recommended to be registered by the underwriters then the number of shares shall
be reduced among the requesting Stockholders in accordance with Article IV of
the Stockholders Agreement. Notwithstanding the foregoing provisions, Company
may withdraw any registration statement referred to in this Section 2 without
thereby incurring any liability to the holders of Registrable Shares. There
shall be no limit to the number of registrations of Registrable Shares which may
be effected under this Section 2.
SECTION 3. Demand Registration.
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(a) The holders of the Registrable Shares at any time after the
date of the Agreement and prior to the time Company is eligible to file a
registration statement on Form S-3 or similar short-form registration, may
request Company to register under the Securities Act all or a portion of the
Registrable Shares held by them for sale in the manner specified in such notice;
provided that (i) the reasonably anticipated aggregate net proceeds to the
sellers from such public offering would exceed $30,000,000 and (ii) subject to
Section 3(c), no such request may be made more than once every nine months.
Notwithstanding anything to the contrary herein, no request may be made under
this Section 3 within 90 days after the effective date of a registration
statement filed by Company covering a firm commitment underwritten public
offering in which the holders of Registrable Shares shall have been entitled to
join pursuant to Section 2 and in which there shall have been effectively
registered all Registrable Shares as to which registration shall have been
requested. Company shall be obligated to register the Registrable Shares
pursuant to this Section 3(a) on three (3) occasions only; provided, however,
that such obligations shall be deemed satisfied only when a registration
statement covering all of the Registrable Shares specified in the notices
received as aforesaid, for sale in accordance with the method of disposition
specified by the requesting holders, shall have become effective and, if such
method of disposition is a firm commitment underwritten public offering, all
such shares shall have been sold pursuant thereto unless any such registration
statement does not become effective due to the withdrawal of 66 2/3% of the
Registrable Shares to be registered. Notwithstanding the foregoing, in the event
Company is entitled to use Form S-3 or similar short-form registration but later
is unable to do so, then to the extent the holders have not exercised their
three demand rights under this Section 3(a), they shall be eligible to do so
under this Section 3(a) until such time as Company again is entitled to use Form
S-3 or similar short-form registration.
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(b) Following receipt of any notice under this Section 3, Company
shall immediately notify all holders of Registrable Shares from whom notice has
not been received that a request for registration pursuant to Section 3(a) has
been received and shall use its best efforts to register under the Securities
Act, for public sale in accordance with the method of disposition specified in
such notice from the requesting holders, the number of shares of Registrable
Shares specified in such notice (and in all notices received by Company from
other holders within twenty (20) days after the giving of such notice by
Company). If such method of disposition shall be an underwritten public
offering, the holders of a majority of the Registrable Shares to be sold in such
offering may designate the managing underwriter of such offering, subject to the
approval of Company, which approval shall not be unreasonably withheld or
delayed.
(c) Company shall be entitled to include in any registration
statement referred to in this Section 3, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Company's
securities to be sold by Company for its own account, and shares of any other
person having registration rights with respect to Company's securities except as
and to the extent that, in the opinion of the managing underwriter (if such
method of disposition shall be an underwritten public offering), such inclusion
would adversely affect the marketing of the Registrable Shares to be sold, then
the number of shares to be registered and sold shall be reduced as follows:
First, the shares of Company securities requested to be registered by
shareholders with "piggyback" or other registration rights (other than the
Stockholders, the holders of BAM Shares and the holders of the Registrable
Shares) shall be reduced at the direction of Company in accordance with the
opinions of the underwriters participating in the public offering. In the event
that the elimination of all of such shares is not sufficient to reduce the
number of shares of Company's securities to be registered to the number
recommended by the underwriters, then the number of shares to be registered by
Company shall then be reduced. In the event that the number of shares requested
to be registered after such reduction shall still be in excess of the number of
shares requested to be registered by the underwriters, then the number of shares
of Registrable Shares shall be reduced pro rata according to the number of
shares requested by each such holder to be registered. In the event the number
of shares requested to be registered after such reduction shall still be in
excess of the number of shares recommended to be registered by the underwriters,
then the number of shares shall be reduced among the requesting holders of BAM
Shares in accordance with the BAM Registration Rights. In the event the number
of shares requested to be registered after such reduction shall still be in
excess of the number of shares recommended to be registered by the underwriters,
then the number of shares shall be reduced among the requesting Stockholders in
accordance with Article IV of the Stockholders Agreement. In the event the
number of shares requested to be registered by the holders of Registrable Shares
under this Section 3 is reduced to any extent as a result of this Section 3(c),
then (i) the holders of Registrable Shares shall not be deemed to have exercised
a demand right pursuant to this Section 3, (ii) the holders of Registrable
Shares shall be entitled to make another request to register all or a portion of
the Registrable Shares at anytime after 30 days after the date of the initial
request and (iii) Company shall
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use its reasonable best efforts to file a registration statement pursuant to a
request made under (ii) above as promptly as possible. Except as provided in
this Section 3 and except for registration statements on Forms S-4, S-8 or any
successor or similar forms thereto and except for a registration statement being
filed as a result of a request made pursuant to the foregoing sentence, Company
will not file with the Commission any other registration statement with respect
to its equity securities, whether for its own account or that of other
stockholders, from the date of receipt of a notice from requesting holders
pursuant to this Section 3 until ninety (90) days after the commencement of the
public offering of the Registrable Shares covered by the registration statement
requested pursuant to this Section 3.
SECTION 4. Registration on Form S-3. The holders of Registrable Shares
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may request at any time that Company file a registration statement on Form S-3
or any successor form thereto for a public offering of all or any portion of the
Registrable Shares provided that (i) the reasonably anticipated aggregate price
to the public of the Registrable Shares to be offered would exceed $30,000,000
(or such lower amount in the case of a request by the holder to register the
balance of the Registrable Shares), and (ii) Company is a registrant entitled to
use Form S-3 or any successor thereto to register such Registrable Shares.
Promptly following receipt of any notice under this Section 4, Company shall use
its best efforts to register under the Securities Act on Form S-3 or any
successor form thereto, for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Registrable Shares
specified in such notice. Whenever Company is required by this Section 4 to use
its best efforts to effect the registration of Registrable Shares, each of the
procedures and requirements of Section 3 and 5 (including but not limited to the
requirement that Company notify all holders of Registrable Shares from whom
notice has not been received and provide them with the opportunity to
participate in the offering, subject to the priority provisions set forth
therein) shall apply to such registration. There is no limit on the number of
requests that can be made pursuant to this Section 4, subject to such requests
meeting the requirements set forth above.
SECTION 5. Registration Procedures. If and whenever Company is required
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by the provisions of Sections 2, 3 or 4 to use its best efforts to effect the
registration of any Registrable Shares under the Securities Act, Company will,
as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such securities, which in the case of Section 3 shall be on Form
S-1 or other available form satisfactory to the holders with respect to such
securities, and cause such registration statement to become and remain effective
for the period specified in Section 5(i);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (i) below and comply with the provisions of
the Securities Act with
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respect to the disposition of all Registrable Shares covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Shares and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Shares covered by such registration statement;
(d) use its best efforts to register or qualify the Registrable
Shares covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Registrable Shares or, in the case
of an underwritten public offering, the managing underwriter reasonably shall
request; provided, however, that Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
(e) use its best efforts to list the Registrable Shares covered by
such registration statement with any securities exchange or market on which the
securities of Company, if applicable, is then listed or quoted or, if the
Registrable Shares are not then listed on a securities exchange, and if the NASD
is reasonably likely to permit the inclusion of the Registrable Shares on
NASDAQ, use its best efforts to facilitate the inclusion of the Registrable
Shares on NASDAQ;
(f) immediately notify each seller of Registrable Shares and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which Company has knowledge as a result of which the
prospectus contained in such registration statement, as then in effect, contains
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(g) at the request of any seller of Registrable Shares, use its best
efforts to furnish on the date that Registrable Shares are delivered to the
underwriters for sale pursuant to such registration: (i) an opinion dated such
date of counsel representing Company for the purposes of such registration,
addressed to the underwriters and to such seller, stating that such registration
statement has become effective under the Securities Act and that (A) to the best
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (B) the registration
statement, the related prospectus and each amendment or supplement thereto
comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements contained therein) and (C) to such other effects as
reasonably may be requested by counsel for the underwriters or by
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such seller or its counsel and (ii) a letter dated such date from the
independent public accountants retained by Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five (5) business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(h) (i) make available for inspection by each seller of Registrable
Shares, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of Company, (ii) cause Company's officers, directors
and employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement and (iii) provide each seller and its counsel with the opportunity to
participate in the preparation of such registration statement;
(i) with respect to any registration statement pursuant to which
Registrable Shares are to be sold pursuant to Sections 2, 3 or 4, Company shall
use its best efforts to cause such registration statement to become and remain
effective for one hundred and eighty (180) days;
(j) notify each seller of Registrable Shares and each underwriter, if
any, promptly, (i) of any request by the Commission for amendments or post-
effective amendments to the registration statement or supplements to the
prospectus or for additional information, (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the registration statement or
the initiation or threatening of any proceeding for such purpose, or (iii) of
the receipt by Company of any notification with respect to the suspension of the
qualification of the Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(k) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement or any qualification
referred to in paragraphs (j) (ii) and (j) (iii) at the earliest possible
moment;
(l) if any event contemplated by paragraph (f) shall exist, subject
to Section 10, prepare and furnish to such sellers a post-effective amendment to
the registration statement or supplement to the prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchaser of the Registrable Shares, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein
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or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(m) not later than the effective date of the registration
statement, provide a CUSIP number for all Registrable Shares and provide the
applicable transfer agent or agents with printed certificates or instruments for
the Registrable Shares which are in a form eligible for deposit with Depository
Trust Company or other transferee and otherwise meeting the requirements of any
securities exchange or other trading market on which such Registrable Shares are
listed or traded; and
(n) enter into such agreements and take such other actions as the
sellers of Registrable Shares and the underwriters reasonably request in order
to expedite or facilitate the disposition of such Registrable Shares including,
without limitation, preparing for and participating in, such number of "road
shows" and all such other customary selling efforts as the underwriters
reasonably request in order to expedite or facilitate such disposition. In
connection with each registration hereunder, the sellers of Registrable Shares
will furnish to Company in writing such information with respect to themselves
and the proposed distribution by them as shall be reasonably necessary in order
to assure compliance with Federal and applicable state securities laws. In
connection with each registration pursuant to Sections 2, 3 or 4 covering an
underwritten public offering, Company and each seller agree to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of Company's size and investment stature (it being understood that
Company will not require a selling stockholder to make any representation,
warranty or agreement in such agreement other than with respect to such
stockholder, the ownership of such stockholder's securities being registered and
such stockholder's intended method of disposition). The representations and
warranties by, and the other agreements on the part of, Company to and for the
benefit of the underwriters in such written agreement with the underwriters
shall also be made to and for the benefit of the selling stockholders. In the
event that any condition to the obligations under any such written agreement
with the underwriters is not met or waived, and such failure to be met or waived
is not attributable to the fault of the selling stockholders requesting a demand
registration pursuant to Section 3, such request for registration shall not be
deemed exercised for purposes of determining whether such registration has been
effected for purposes of Section 3.
SECTION 6. Expenses. All Registration Expenses shall be borne by Company
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whether or not the registration statement has become effective. All Selling
Expenses shall be borne by the participating sellers in proportion to the number
of shares sold by each, or by such participating sellers other than Company
(except to the extent Company shall be a seller) as they may agree.
SECTION 7. Indemnification and Contribution.
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(a) In the event of a registration of any of the Registrable Shares
under the Securities Act pursuant to Sections 2, 3 or 4, Company will indemnify
and hold harmless each seller of such Registrable Shares thereunder, each
underwriter of such Registrable Shares thereunder and each other person, if any,
who controls such seller or underwriter within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which such seller, underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Registrable Shares were registered
under the Securities Act pursuant to Sections 2, 3 or 4, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished in writing by such seller, such
underwriter or such controlling person specifically for use in such registration
statement or prospectus.
(b) In the event of a registration of any of the Registrable Shares
under the Securities Act pursuant to Sections 2, 3 or 4, each seller of such
Registrable Shares thereunder, severally and not jointly, will indemnify and
hold harmless Company, each person, if any, who controls Company within the
meaning of the Securities Act, each officer of Company who signs the
registration statement, each director of Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
Company or such officer, director, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such loses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the registration statement under which such Registrable Shares were
registered under the Securities Act pursuant to Sections 2, 3 or 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact made in
reliance upon and
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in conformity with information pertaining to such seller, as such, furnished in
writing to Company by such seller specifically for use in such registration
statement or prospectus; and provided further, however, that the liability of
each seller hereunder shall be limited to the proportion of any such loss,
claim, damage, liability or expense which is equal to the proportion that the
public offering price of the shares sold by such seller under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not in any event to exceed the proceeds received by such seller
from the sale of Registrable Shares covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 7 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 7 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 7 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any
indemnified party exercising rights under the Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 7 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 7 provides for
indemnification in such case, (ii) contribution under the Securities Act may be
required on the part of any such selling holder or any such controlling person
in circumstances for which indemnification is provided under this Section 7, or
(iii) the
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indemnification provided for by this Section 7 is insufficient to hold harmless
an indemnified party, other than by reason of the exceptions provided therein;
then, and in each such case, Company and such holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) (x) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and the
indemnified party on the other or (y) if the allocation provided by clause (x)
above is not permitted by applicable law, or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative fault referred to in clause (x)
above but also the relative benefits received by the indemnifying party and the
indemnified party from the offering of the securities (taking into account the
portion of the proceeds of the offering received by each such party) as well as
the statements or omissions which resulted in such losses, claims, damages or
liabilities and any other relevant equitable considerations. No holder of
Registrable Shares will be required to contribute any amount in excess of the
proceeds received by such holder in respect of all such Registrable Shares
offered and sold by it pursuant to such registration statement and no person or
entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
SECTION 8. Changes in Common Stock; Successor. (a) If, and as often as,
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there is any change in the Common Stock by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Common Stock as so
changed.
(b) If Company consolidates or merges into or with, another person
or sells, assigns, conveys, transfers, leases or otherwise disposes of all or a
majority of its assets to any person or group, or any person or group
consolidates with, or merges into or with, Company, each holder of Registrable
Shares shall, as a condition to the relevant transaction involving such person,
group or successor in business, be granted by such person, group or successor in
business (each a "Successor"), equivalent rights granted in hereunder.
SECTION 9. Rule 144 Reporting. With a view to making available the
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benefits of certain rules and regulations of the Commission which may at any
time permit the sale of Registrable Shares to the public without registration,
at all times ninety (90) days after any registration statement covering a public
offering of securities of Company under the Securities Act shall have become
effective, Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
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(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of Company under the Securities
Act and the Exchange Act; and
(c) furnish to each holder of Registrable Shares forthwith upon
request a written statement by Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of Company, and such other
reports and documents so filed by Company as such holder may reasonably request
in availing itself of any rule or regulation of the Commission allowing such
holder to sell any Registrable Shares without registration.
SECTION 10. Suspension of Registration Obligations. Except as otherwise
--------------------------------------
set forth in Section 3(c) (as the same may be applicable under Section 4) and
notwithstanding the provisions of Section 5(a), (i) Company's obligation to file
a registration statement, or cause such registration statement to become and
remain effective (a) may be suspended on one occasion for a period not to exceed
one hundred and eighty (180) days if there exists at the time material nonpublic
information relating to Company which, in the reasonable opinion of Company,
should not be disclosed (b) shall not apply for the period which begins seven
days prior to and ends 90 days after the commencement of a public offering of
securities, so long as Company has fulfilled its notice obligations under
Sections 2, 3 or 4 with respect to such offering and (ii) if a public offering
of securities has been previously commenced, neither the Company nor any
controlling person of the Company shall commence another public offering of the
securities until 90 days after the commencement of such prior offering.
SECTION 11. Other Stockholders and Registration Rights. From and after
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March 5, 1999, through the date hereof, Company has not amended any registration
rights agreement or grant of registration rights in effect on March 5, 1999, nor
has it granted any additional demand or piggyback registration rights to any
individual or entity. The Company hereby represents that, other than pursuant
to the Stockholders Agreement, a letter agreement granting Robert and Barbara
Crown a separate demand registration right and the BAM Registration Rights, the
Company has not granted any persons any registration rights in respect of the
common stock of the Company or security convertible into common stock. The
Company shall not permit any additional parties to be designated as
"Stockholders" under the Stockholders Agreement, except for transferees of
Stockholders permitted under the Stockholders Agreement. The Company agrees
that it will not enter into any registration rights with any person that include
provisions designed to circumvent the provisions of these registration rights.
SECTION 12. Transferability of Registration Rights. Registration rights
--------------------------------------
conferred herein on the holders of Registrable Shares shall inure to the benefit
of their successors and transferees.
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SECTION 13. Withdrawals. Any holder of Registrable Shares may at any time
-----------
withdraw any request made pursuant to Section 2, 3 or 4 for registration of its
Registrable Shares; provided, however, that to the extent that such withdrawal
-------- -------
or withdrawals result in a termination of any offering proposed to be made
pursuant to Section 3 or 4, Company shall be deemed, for purposes of determining
the continuing rights of holders of Registrable Shares hereunder, to have
consummated such offering for purposes of Section 3 or 4 unless such holder(s)
agree to (and actually do) reimburse Company for all Registration Expenses
incurred by Company in connection with such terminated offering. Anything
herein to the contrary notwithstanding, the provisions of this Section 13 shall
not be applicable in the event that any such withdrawal(s) resulting in such
termination is or are effected on account of (a) Company's failure to disclose
any material fact required to be disclosed in the registration statement or any
prospectus relating to such offering or (b) any material adverse change in
Company, its business, assets or condition (financial or other).
SECTION 14. General Provisions.
------------------
(a) Remedies. Each holder of Registrable Shares, in addition to
--------
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, in connection with the breach by Company of its
obligations to register the Registrable Shares will be entitled to specific
performance of its rights under this Agreement. Company acknowledges and agrees
that monetary damages would not be adequate compensation for loss incurred by
reason of a breach by it of any of the provisions of this Agreement and agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) Notices. Whenever any notice, demand or request is required
-------
or permitted under this Agreement, such notice, demand or request shall be in
writing and shall be delivered by hand, be sent by registered or certified mail,
postage prepaid, return receipt requested, or be sent by nationally recognized
commercial courier for next business day delivery, to the addresses set forth
below, or to such other addresses as are specified by written notice given in
accordance herewith, or shall be transmitted by facsimile to the number for each
party set forth below, or to such other numbers as are specified by written
notice given in accordance herewith. All notices, demands or requests delivered
by hand shall be deemed given upon the date so delivered; those given by mailing
as hereinabove provided shall be deemed given on the date of deposit in the
United States Mail; those given by commercial courier as hereinabove provided
shall be deemed given on the date of deposit with the commercial courier; and
those given by facsimile shall be deemed given on the date of facsimile
transmittal. Nonetheless, the time period, if any, in which a response to any
notice, demand or request must be given shall commence to run from the date of
receipt of the notice, demand or request by the addressee thereof. Any notice,
demand or request not received because of changed address or facsimile number of
which no notice was given as hereinabove provided or because of refusal to
accept delivery shall be deemed received by the party to whom addressed on the
date of hand delivery, on the date of facsimile transmittal, on the first
calendar day after deposit with commercial courier, or on the third calendar day
following deposit in the United States
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Mail, as the case may be. The address for any transferee of the Registrable
Shares shall be the most current address given by such holder to Company in
accordance with the provisions of this Section 14(b).
If to Company: If to BMI:
Crown Castle International Corp. BellSouth Mobility Inc
510 Bering Drive, Suite 500 1100 Peachtree Street, NE, 10th Floor
Houston, Texas 77057 Atlanta, GA 30367
Facsimile No.: (713) 570-3150 Facsimile No.: (404) 249-0922
Attention: Chief Executive Office Attention: Kerwin Gray, Esq.
General Counsel
with a copy to: with a copy to:
Cravath, Swaine & Moore BellSouth Corporation
825 Eighth Avenue, Worldwide Plaza 1155 Peachtree Street, NE, 18th Floor
New York, New York 10019-7475 Atlanta, GA 30309
Facsimile No.: (212) 474-3700 Facsimile No.: (404) 249-2629
Attention: Stephen L. Burns Attention: E. John Whelchel, Esq.
(c) Facsimile as Writing. The parties expressly acknowledge and
--------------------
agree that, notwithstanding any statutory or decisional law to the contrary, the
printed product of a facsimile transmittal shall be deemed to be "written" and a
"writing" for all purposes of this Agreement.
(d) Binding Effect. This Agreement shall be binding upon and
--------------
enforceable against, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns.
(e) Third Party Beneficiaries. The holders of Registrable Shares
-------------------------
shall be third party beneficiaries to this Agreement and shall have the right to
enforce this Agreement to the extent they may deem such enforcement necessary or
advisable to protect their rights or the rights of holders hereunder.
(f) Headings. The use of headings, captions and numbers in this
--------
Agreement is solely for the convenience of identifying and indexing the various
provisions in this Agreement and shall in no event be considered otherwise in
construing or interpreting any provision in this Agreement.
(g) Pronouns. Wherever appropriate in this Agreement, personal
--------
pronouns shall be deemed to include the other genders and the singular to
include the plural.
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(h) Severability. If any term, covenant, condition or provision of
------------
this Agreement, or the application thereof to any person or circumstance, shall
ever be held to be invalid or unenforceable, then in each such event the
remainder of this Agreement or the application of such term, covenant, condition
or provision to any other person or any other circumstance (other than those as
to which it shall be invalid or unenforceable) shall not be thereby affected,
and each term, covenant, condition and provision hereof shall remain valid and
enforceable to the fullest extent permitted by law.
(i) Non-Waiver. Failure by either party to complain of any action,
----------
non-action or breach of the other party shall not constitute a waiver of either
aggrieved party's rights hereunder. Waiver by either party of any right arising
from any breach of the other party shall not constitute a waiver of any other
right arising from a subsequent breach of the same obligation or for any other
default, past, present or future.
(j) Rights Cumulative. All rights, remedies, powers and privileges
-----------------
conferred under this Agreement on the parties shall be cumulative of and in
addition to, but not restrictive of or in lieu of, those conferred by law.
(k) Time of Essence. Time is of the essence of this Agreement.
---------------
Anywhere a day certain is stated for payment or for performance of any
obligation, the day certain so stated enters into and becomes a part of the
consideration for this Agreement. If any date set forth in this Agreement shall
fall on, or any time period set forth in this Agreement shall expire on, a day
which is a Saturday, Sunday or federal holiday, such date shall automatically be
extended to, and the expiration of such time period shall automatically to be
extended to, the next day which is not a Saturday, Sunday, federal or state
holiday or other non-business day. The final day of any time period under this
Agreement or any deadline under this Agreement shall be the specified day or
date, and shall include the period of time through and including such specified
day or date.
(l) Applicable Law. This Agreement shall be governed by, construed
--------------
under and interpreted and enforced in accordance with the laws of the State of
Georgia, without regard of conflicts of law.
(m) Entire Agreement. This Agreement contains the entire agreement
----------------
of the parties with respect to the subject matter hereof, and all
representations, warranties, inducements, promises or agreements, oral or
otherwise, between the parties not embodied in this Agreement shall be of no
force or effect.
(n) Modifications. This Agreement shall not be modified or amended
-------------
in any respect except by a written agreement executed by the parties in the same
manner as this Agreement is executed.
(o) Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
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(p) Attorneys' Fees. In the event of any litigation arising under or
---------------
in connection with this Agreement, the prevailing party shall be entitled to
recover from the other party the expenses of litigation (including reasonable
attorneys' fees, expenses and disbursements) incurred by the prevailing party.
(q) Authority. Each party hereto warrants and represents that such
---------
party has full and complete authority to enter into this Agreement and each
individual executing this Agreement on behalf of a party warrants and represents
that he has been fully authorized to execute this Agreement on behalf of such
party and that such party is bound by the signature of such representative.
(r) Counsel. Each party hereto warrants and represents that such
-------
party has been afforded the opportunity to be represented by counsel of its
choice in connection with the execution of this Agreement and has had ample
opportunity to read, review, and understand the provisions of this Agreement.
(s) No Construction Against Preparer. No provision of this Agreement
--------------------------------
shall be construed against or interpreted to the disadvantage of either party by
any court or other governmental or judicial authority by reason of such party's
having or being deemed to have prepared or imposed such provision.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and sealed by their duly authorized representatives, all effective as
of the day and year first written above.
Company:
CROWN CASTLE INTERNATIONAL CORP.
By: /s/ Kathy Broussard
-------------------------------------
Name: Kathy Broussard
--------------------------------
Title: Vice President
-------------------------------
BMI:
BELLSOUTH MOBILITY INC.
By: /s/ Joel L.A. Peterson
-------------------------------------
Name: Joel L.A. Peterson
--------------------------------
Title: AVP
-------------------------------
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