Exhibit 99.3
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_______________________________________
WARRANT AGREEMENT
Dated as of November 19, 1999
by and among
Crown Castle International Corp.
and
United States Trust Company of New York,
as Warrant Agent
_______________________________________
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TABLE OF CONTENTS
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Page
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Section 1. Certain Definitions................................................ 1
Section 2. Appointment of Warrant Agent....................................... 3
Section 3. Issuance of Warrants; Warrant Certificates......................... 3
Section 4. Terms of Warrants; Exercise of Warrants............................ 6
Section 5. Separation of Warrants............................................. 7
Section 6. Payment of Taxes................................................... 7
Section 7. Reservation of Warrant Shares...................................... 8
Section 8. Obtaining Stock Exchange Listings.................................. 8
Section 9. Adjustment of Exercise Price and Number of Warrant Shares.......... 9
Section 10. Statement on Warrants.............................................. 18
Section 11. Capital and Ownership Structure.................................... 18
Section 12. Fractional Interest................................................ 18
Section 13. Notices to Warrant Holders......................................... 18
Section 14. Merger, Consolidation or Change of Name of Warrant Agent........... 20
Section 15. Warrant Agent...................................................... 20
Section 16. Resignation and Removal of Warrant Agent; Appointment of Successor. 22
Section 17. Registration Rights................................................ 23
Section 18. Certain Covenants.................................................. 23
Section 19. Notices to Company and Warrant Agent............................... 24
Section 20. Entire Agreement, Supplements and Amendments....................... 24
Section 21. Enforcement........................................................ 25
Section 22. Successors......................................................... 25
Section 23. Governing Law...................................................... 25
Section 24. Consent to Jurisdiction............................................ 25
Section 25. Termination........................................................ 26
Section 26. Benefits of This Agreement......................................... 26
Section 27. Counterparts....................................................... 26
EXHIBITS
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EXHIBIT A.............................................. Form of Warrants
EXHIBIT B.............................................. Registration Rights Agreement
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WARRANT AGREEMENT, dated as of November 19, 1999 (the "Agreement"), between
Crown Castle International Corp., a Delaware corporation (the "Company"), and
United States Trust Company of New York, as warrant agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue warrant, as hereinafter described
(the "Warrant"), to purchase up to an aggregate of 1,000,000 shares of Common
Stock (as defined below), in connection with the offering of an aggregate of
200,000 shares of the Company's Series A and Series B 8.25% Cumulative
Convertible Redeemable Preferred Stock (the "Convertible Preferred Stock") and
the Warrant entitling the Holder thereof to purchase 1,000,000 shares of Common
Stock.
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrant Certificates (as defined below) and other matters as
provided herein.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein set forth, and for the purpose of defining the respective rights and
obligations of the Company, the Warrant Agent and the Holder (as defined below),
the parties hereto agree as follows:
Section 1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" shall have the meaning assigned to that term in the Certificate
of Designations.
"Business Day" means a day other than a Saturday or Sunday or any federal
holiday.
"Capital Stock" shall have the meaning assigned to that term in the
Certificate of Designations.
"Certificate of Designations" means that certain Certificate of
Designations, Preferences, and Relative Participating, Optional and Other
Special Rights of Preferred Stock and Qualification, Limitations and
Restrictions Thereof, governing the Convertible Preferred Stock.
"Change of Control" has the meaning assigned to that term in the
Certificate of Designations.
"Change of Control Exercise Date" has the meaning assigned to that term in
Section 9(g) hereof.
"Closing Date" means the date hereof.
"Commission" means the Securities and Exchange Commission.
"Common Equity Securities" means Common Stock and Rights, excluding the
Warrants.
"Common Stock" means the common stock, par value $0.01 per share, of the
Company, and any other Capital Stock of the Company into which such common stock
may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution for, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
"Company" means Crown Castle International Corp., a Delaware corporation,
and its successors and assigns.
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"Current Market Price" hall have the meaning assigned to that term in the
Certificate of Designations.
"Determination Date" shall have the meaning assigned to it in Section 9(f)
hereof.
"Disinterested Director" means, in connection with any issuance of
securities that gives rise to a determination of the Current Market Price
thereof, each member of the Board of Directors who is not an officer, employee,
director or other Affiliate of the party to whom the Company is proposing to
issue the securities giving rise to such determination.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Date" means any time on or after the issuance of the Warrants.
"Exercise Price" means the purchase price per share of Common Stock to be
paid upon the exercise of each Warrant in accordance with the terms hereof,
which price shall initially be $26.875, subject to adjustment from time to time
pursuant to Sections 9 hereof.
"Expiration Date" means the close of business on the 5th anniversary of the
Closing Date.
"Holder" means a person in whose name the Warrants are registered.
"Investor" shall have the meaning assigned to that term in the Certificate
of Designations.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Warrant Agent in form and substance reasonably acceptable to
the Warrant Agent. The counsel may be an employee of or counsel to the Company,
any subsidiary of the Company or the Warrant Agent.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business.
"Private Placement Legend" means the legend set forth in Section 3.5 to be
placed on all Warrants issued under this Warrant Agreement except where
otherwise permitted by the provisions of this Warrant Agreement.
"Registration Rights Agreement" shall have the meaning assigned to that
term in the Certificate of Designations.
"Rights" shall have the meaning assigned to that term in the Certificate of
Designations.
"Securities Act" means the Securities Act of 1933, as amended.
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"Stockholder Agreement" shall have the meaning assigned to that term in the
Certificate of Designations.
"Subsidiary" shall have the meaning assigned to that term in the
Certificate of Designations.
"TdF" shall have the meaning assigned to that term in the Certificate of
Designations.
"Trading Day" shall have the meaning assigned to that term in the
Certificate of Designations.
"Transfer Date" means two years from the date of issuance of the Warrants.
"Triggering Distribution" shall have the meaning assigned to it in Section
9(f) hereof.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" shall have the meaning assigned to that terms in the
Certificate of Designations.
"Warrant Agent" means United States Trust Company of New York or the
successor or successors of such Warrant Agent appointed in accordance with the
terms hereof.
"Warrant Countersignature Order" shall have the meaning assigned to that
term in Section 3.3 hereof.
"Warrant Shares" means the shares of Common Stock issued or issuable upon
the exercise of the Warrants.
Section 2. Appointment of Warrant Agent.
The Company hereby appoints the Warrant Agent to act as agent for the
Company in accordance with the instructions set forth hereinafter in this
Agreement, and the Warrant Agent hereby accepts such appointment.
Section 3. Issuance of Warrants; Warrant Certificates.
3.1. Form and Dating.
The Warrants shall be substantially in the form of Exhibit A hereto (the
"Warrant Certificates"). The Warrants may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company), and shall bear the legend
required by Section 3.5 hereof. Each Warrant shall be dated the date of the
countersignature by the Warrant Agent.
The terms and provisions contained in the Warrants shall constitute, and
are hereby expressly made, a part of this Warrant Agreement. The Company and the
Warrant Agent, by their execution and delivery of this Warrant Agreement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Warrant conflicts with the express provisions
of this Warrant Agreement, the provisions of this Warrant Agreement shall govern
and be controlling.
The Warrants shall be issued initially in definitive form represented by a
certificated Warrant, which shall be deposited with the Warrant Agent.
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The Warrants may be issued in the form of one or more fully registered
global certificates with the global securities legend and restricted securities
legend.
3.2. Execution.
An Officer shall sign the Warrants for the Company by manual or facsimile
signature.
If the Officer whose signature is on a Warrant no longer holds that office
at the time a Warrant is countersigned, the Warrant shall nevertheless be valid.
3.3. Registration and Countersignature.
The Warrant Agent, on behalf of the Company, shall number and register the
Warrant Certificates in a register as they are issued by the Company.
Warrant Certificates shall be manually countersigned by the Warrant Agent
and shall not be valid for any purpose unless so countersigned. The Warrant
Agent shall, upon written instructions of the Chairman of the Board, the
President or the Treasurer of the Company (the "Warrant Countersignature
Order"), initially countersign, issue and deliver Warrants entitling the Holders
thereof to purchase not more than the number of Warrant Shares referred to above
in the first recital hereof and shall countersign and deliver Warrants as
otherwise provided in this Agreement. Any such Warrant Countersignature Order to
the Warrant Agent described herein shall specify (in addition to the number of
Warrants) the date on which the original issue of Warrants is to be
countersigned.
The Company and the Warrant Agent may deem and treat the Holder(s) of the
Warrant Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for all
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
3.4. Holder Lists.
The Warrant Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders.
3.5. Registration of Transfers and Exchanges.
The Warrant Agent shall from time to time register the transfer of any
outstanding Warrant Certificates upon the records to be maintained by it for
that purpose, upon surrender thereof accompanied (if so required by it) by a
written instrument or instruments of transfer in form satisfactory to the
Warrant Agent, duly executed by the registered Holder or Holders thereof or by
the duly appointed legal representative thereof or by a duly authorized
attorney. Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee(s) and the surrendered Warrant Certificate
shall be cancelled by the Warrant Agent. Cancelled Warrant Certificates shall
thereafter be disposed of in a manner satisfactory to the Company.
The Warrant Holders agree that prior to any proposed transfer of the
Warrant or of the Warrant Shares, if such transfer is not made pursuant to an
effective Registration Statement under the Securities Act, or an opinion of
counsel, reasonably satisfactory in form and substance to the Company, that the
Warrant or Warrant Shares may be sold publicly without registration under the
Securities Act, the Warrant Holder will, if requested by the Company, deliver to
the Company:
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(1) an investment covenant reasonably satisfactory to the Company
signed by the proposed transferee;
(2) an agreement by such transferee to the impression of the
restrictive investment legend set forth below on the Warrant or the Warrant
Shares;
(3) an agreement by such transferee that the Company may place a
notation in the stock books of the Company or a "stop transfer order" with
any transfer agent or registrar with respect to the Warrant Shares; and
(4) an agreement by such transferee to be bound by the provisions of
this Section 3.5 relating to the transfer of such Warrant or Warrant
Shares.
The Warrant Holders agree that each certificate representing Warrant Shares
will bear the following legend:
"The securities evidenced or constituted hereby have been acquired for
investment and have not been registered under the Securities Act of
1933, as amended. Such securities may not be sold, transferred,
pledged or hypothecated unless the registration provisions of said Act
have been complied with or unless the Company has received an opinion
of counsel reasonably satisfactory to the Company that such
registration is not required."
Warrant Certificates may be exchanged at the option of the Holder(s)
thereof, when surrendered to the Warrant Agent at its office for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in the
aggregate a like number of Warrants. Warrant Certificates surrendered for
exchange shall be cancelled by the Warrant Agent. Such cancelled Warrant
Certificates shall then be disposed of by such Warrant Agent in a manner
satisfactory to the Company.
The Warrant Agent is hereby authorized to countersign, in accordance with
the provisions of this Section 3.5 and of Section 3.3 hereof, the new Warrant
Certificates required pursuant to the provisions of Section 3.6 hereof.
3.6. Replacement Warrant Certificate.
If any mutilated Warrant Certificate is surrendered to the Warrant Agent or
the Company, or the Warrant Agent or the Company receives evidence to its
satisfaction of the destruction, loss or theft of any Warrant Certificate, the
Company shall issue and the Warrant Agent, upon receipt of a Warrant
Countersignature Order, shall countersign a replacement Warrant Certificate if
the requirements of the Warrant Agent and of Section 8-405 of the Uniform
Commercial Code as in effect in the State of New York are met. If required by
the Warrant Agent or the Company, an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Warrant Agent and the Company
to protect the Company, the Warrant Agent, and any agent for purposes of the
countersignature from any loss that any of them may suffer if a Warrant
Certificate is replaced. The Company may charge for its expenses in replacing a
Warrant Certificate.
Every replacement Warrant Certificate is an additional obligation of the
Company and shall be entitled to all of the benefits of this Warrant Agreement
equally and proportionately with all other Warrants duly issued hereunder.
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3.7. Temporary Warrant Certificates
Until certificates representing Warrants are ready for delivery, the
Company may prepare and the Warrant Agent, upon receipt of a Warrant
Countersignature Order, shall authenticate temporary Warrant Certificates.
Temporary Warrant Certificates shall be substantially in the form of
certificated Warrants but may have variations that the Company considers
appropriate for temporary Warrant Certificates and as shall be reasonably
acceptable to the Warrant Agent. Without unreasonable delay, the Company shall
prepare and the Warrant Agent shall countersign definitive Warrant Certificates
in exchange for temporary Warrant Certificates.
Holders of temporary Warrant Certificates shall be entitled to all of the
benefits of this Warrant Agreement.
3.8. Cancellation.
Subject to Section 3.7 hereof, the Company at any time may deliver Warrant
Certificates to the Warrant Agent for cancellation. The Warrant Agent and no
one else shall cancel all Warrant Certificates surrendered for registration of
transfer, exchange, exercise, replacement or cancellation (subject to the record
retention requirement of the Exchange Act). The Company may not issue new
Warrant Certificates to replace Warrants that have been exercised or that have
been delivered to the Warrant Agent for cancellation.
Section 4. Terms of Warrants; Exercise of Warrants.
Subject to the terms of this Agreement, each Warrant Holder shall have the
right, which may be exercised commencing at the opening of business on the
Exercise Date and ending at the close of business on the Expiration Date (such
period, the "Exercise Period"), to receive from the Company the number of fully
paid and nonassessable Warrant Shares which the Holder may at the time be
entitled to receive on exercise of such Warrants and payment of the Exercise
Price in the manner provided below. Each Holder may only exercise its right
during the Exercise Period on a net basis, such that, without the exchange of
any funds, the Holder receives that number of Warrant Shares otherwise issuable
(or payable) upon exercise of its Warrants less that number of Warrant Shares
having an aggregate fair market value (as defined below) at the time of exercise
equal to the aggregate Exercise Price that would otherwise have been paid by the
Holder of the Warrant Shares had the Exercise Price been paid in cash. Each
Warrant not exercised prior to the Expiration Date shall become void and all
rights in respect thereof under this Agreement shall cease as of such time. No
adjustments as to dividends will be made upon exercise of the Warrants.
In order to exercise all or any of the Warrants represented by a Warrant
Certificate, the Holder thereof must (i) surrender for exercise the Warrant
Certificate to the Company at the office of the Warrant Agent at its New York
corporate trust office, and (ii) deliver to the Company at the office of the
Warrant Agent the form of election to purchase on the reverse thereof duly
filled in and signed, which signature shall be a medallion guaranteed by an
institution which is a member of a Securities Transfer Association recognized
signature guarantee program, and upon payment to the Warrant Agent for the
account of the Company of the Exercise Price, which is set forth in the form of
Warrant Certificate as adjusted as herein provided, for the number of Warrant
Shares in respect of which such Warrants are then exercised.
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For purposes of this Section 4, the fair market value of the Warrants shall
be determined as follows: (A) to the extent the Common Stock is publicly traded
and listed on the Nasdaq National Market or a national securities exchange, the
fair market value shall be equal to the greater of (1) the difference between
(a) the average closing price as quoted on the Nasdaq National Market of the
Common Stock for each of the 10 trading days immediately prior to the exercise
date (or, if the Common Stock is listed on a national securities exchange, the
average closing price as reported on such national securities exchange during
such 10-trading-day period) and (b) the Exercise Price, and (2) zero; or (B) to
the extent the Common Stock is not publicly traded, or otherwise is not listed
on a national securities exchange, the fair market value shall be equal to the
value per share as determined in good faith by the Board of Directors of the
Company.
Upon surrender of Warrant Certificates and payment of the Exercise Price as
provided above, the Warrant Agent shall thereupon promptly notify the Company,
and the Company shall promptly transfer to the Holder of such Warrant
Certificate a certificate or certificates of Common Stock for the appropriate
number of Warrant Shares or other securities or property (including any money)
to which the Holder is entitled, registered or otherwise placed in, or payable
to the order of, such name or names as may be directed in writing by the Holder,
and shall deliver such certificate or certificates representing the Warrant
Shares and any other securities or property (including any money) to the person
or persons entitled to receive the same, together with an amount in cash in lieu
of any fraction of a share as provided in Section 12 hereof. Any such
certificate or certificates representing the Warrant Shares shall be deemed to
have been issued and any person so designated to be named therein shall be
deemed to have become a Holder of record of such Warrant Shares as of the date
of the surrender of such Warrant Certificates and payment of the Exercise Price.
The Warrants shall be exercisable commencing on the Exercise Date, at the
election of the Holders thereof, either in full or from time to time in part.
If less than all the Warrants represented by a Warrant Certificate are
exercised, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants which were not
exercised shall be executed by the Company and delivered to the Warrant Agent
and the Warrant Agent shall countersign the new Warrant Certificate, registered
in such name or names as may be directed in writing by the Holder, and shall
deliver the new Warrant Certificate to the Person or Persons entitled to receive
the same.
All Warrant Certificates surrendered upon exercise of Warrants shall be
canceled by the Warrant Agent. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the Company
all monies received by the Warrant Agent for the purchase of the Warrant Shares
through the exercise of such Warrants. The Warrant Agent shall keep copies of
this Agreement and any notices given or received hereunder by or from the
Company available for inspection by the Holders during normal business hours at
its office. The Company shall supply the Warrant Agent from time to time with
such numbers of copies of this Agreement as the Warrant Agent may reasonably
request.
Section 5. Separation of Warrants.
Warrants shall be transferable separately from the Convertible Preferred
Stock.
Section 6. Payment of Taxes.
The Company will pay all documentary stamp taxes attributable to the
initial issuance of Warrant Shares upon the exercise of Warrants; provided that,
in each case, the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue of any Warrant
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Certificates or any certificates for Warrant Shares in a name other than that of
the Holder of a Warrant Certificate surrendered upon the exercise of a Warrant,
and the Company shall not be required to issue or deliver such Warrant
Certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
Section 7. Reservation of Warrant Shares.
The Company will at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock or its authorized and issued Common Stock held in its treasury, for the
purpose of enabling it to satisfy any obligation to issue Warrant Shares upon
exercise of Warrants, the maximum number of shares of Common Stock which may
then be deliverable upon the exercise of all outstanding Warrants.
The Company or, if appointed by the Company, the transfer agent for the
Common Stock (the "Transfer Agent") and every subsequent transfer agent for any
shares of the Company's Capital Stock issuable upon the exercise of any of the
rights of purchase aforesaid will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for such
purpose. The Company shall keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's Capital Stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is hereby irrevocably authorized
to requisition from time to time from such Transfer Agent the stock certificates
required to honor outstanding Warrants upon the exercise thereof in accordance
with the terms of this Agreement. The Company shall supply such Transfer Agent
with duly executed certificates for such purposes and shall provide or otherwise
make available any cash which may be payable. The Company shall furnish such
Transfer Agent a copy of all notices of adjustments and certificates related
thereto, transmitted to each Holder of the Warrants pursuant to Section 13
hereof.
Before taking any action which would cause an adjustment pursuant to
Sections 9 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants in accordance with the terms of this Agreement (including
the terms of the Exercise Price) will, upon issue, be duly and validly issued,
fully paid and nonassessable, free of preemptive rights and free from all taxes,
liens, charges and security interests with respect to the issue thereof.
Section 8. Obtaining Stock Exchange Listings.
The Company will from time to time take all action which may be necessary
so that the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, will be listed on the principal securities exchanges and markets
within the United States of America, if any, on which other shares of Common
Stock are then listed.
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Section 9. Adjustment of Exercise Price and Number of Warrant Shares.
The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 9.
(a) Adjustment for Change in Capital Stock.
If the Company:
(i) pays a dividend (or makes a distribution) on its Common
Stock in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(iii) combines its outstanding shares of Common Stock into a
smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
Capital Stock other than Common Stock; or
(v) issues any shares of its Capital Stock by reclassification
of its Common Stock;
then the Exercise Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Warrant thereafter exercised may receive the
aggregate number and kind of shares of Capital Stock of the Company which he
would have owned immediately following such action if such Warrant had been
exercised immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
If after an adjustment referred to in clauses (a)(i) through (v) above a
Holder of a Warrant upon exercise of it may receive shares of two or more
classes of Capital Stock of the Company, then the Exercise Price shall be split
into two or more components, as the case may be, and the Exercise Price of each
class of Capital Stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Section.
(b) Adjustment for Rights Issue.
If the Company distributes any Rights to all or substantially all holders
of its Common Stock entitling them to subscribe for or purchase shares of Common
Stock at a price per share that is less than the Current Market Price per share
of Common Stock on the record date of distributions of such Rights, the Exercise
Price shall be adjusted in accordance with the formula:
E' = E x ((O+((N x P)/M))/(O + N))
where:
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E' = the adjusted Exercise Price.
E = the Exercise Price as of the applicable record date.
O = the number of shares of Common Stock outstanding on the record
date.
N = the number of additional shares of Common Stock offered (or into
which the Rights so offered are convertible or exercisable).
P = the offering price per share of the additional shares of Common
Stock (or the conversion price per share of the Rights so
offered).
M = the Current Market Price per share of Common Stock on the record
date.
The adjustment shall be made successively whenever any such Rights are
issued and shall become effective immediately after the record date for the
determination of stockholders entitled to receive the Rights. If at the end of
the period during which such Rights are exercisable, not all Rights shall have
been exercised, the Exercise Price shall be immediately readjusted to what it
would have been if "N" in the above formula had been the number of shares
actually issued. For the purposes of this paragraph (b), the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
(c) Adjustment for Other Distributions.
If the Company distributes to all or substantially all holders of shares of
its Common Stock (i) any evidence of indebtedness or other securities (other
than shares of Common Stock) of the Company or any Subsidiary of the Company,
(ii) any other assets (including securities, but excluding cash and those
dividends, Rights and distributions referred to above in this Section 9) or
(iii) Rights to subscribe for or purchase any of its securities (excluding those
referred to above in Section 9(b)), the Exercise Price shall be adjusted in
accordance with the formula:
E' = E x ((M - F)/M)
where:
E' = the adjusted Exercise Price.
E = the Exercise Price as of the applicable record date.
M = the Current Market Price per share of Common Stock as of the
applicable record date.
F = the fair market value on the record date of the Capital Stock,
indebtedness, other securities or other assets distributed per
share of Common Stock, or of such Rights applicable to one share
of Common Stock (determined on the basis of the number of shares
of Common Stock outstanding on the record date).
The adjustment shall be made successively whenever any such distribution is
made and shall become effective immediately after the record date for the
determination of stockholders entitled to receive the distribution.
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(d) Adjustment for Common Stock Issue.
If the Company issues shares of Common Stock to all or substantially all
holders of shares of Common Stock for a consideration per share less than the
Current Market Price per share on the date the Company issues such additional
shares, the Exercise Price shall be adjusted in accordance with the formula:
E' = E x (( O + (P/M))/A)
where:
E' = the adjusted Exercise Price.
E = the Exercise Price as of the applicable record date.
O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the Current Market Price per share on the date of issuance of
such additional shares.
A = the number of shares outstanding immediately after the issuance
of such additional shares.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
This Section 9(d) does not apply to any of the transactions described in
Sections 9(b), (c), (e) and (f) hereof. For the purpose of this paragraph (d),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.
(e) Adjustment for Convertible Securities Issue.
If the Company issues any securities convertible or exercisable into or
exchangeable for Common Stock (other than the Convertible Preferred Stock,
Warrants or securities issued in transactions described in Sections 9(b), (c)
and (d) hereof) to all or substantially all holders of shares of Common Stock
and for a consideration per share of Common Stock initially deliverable upon
conversion, exchange or exercise of such securities less than the Current Market
Price per share on the date of issuance of such securities, the Exercise Price
shall be adjusted in accordance with this formula:
E' = E x ((O + (P/M))/(O + D)
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
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O = the number of shares of Common Stock outstanding immediately
prior to the issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities, plus the aggregate consideration receivable upon
exercise of all such securities.
M = the Current Market Price per share of Common Stock on the date of
issuance of such securities.
D = the maximum number of shares of Common Stock deliverable upon
conversion in exchange or upon exercise of such securities at the
initial conversion or exchange rate.
The adjustment shall be made successively whenever any such issuance is
made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion, exchange or
exchange of such securities has not been issued when such securities are no
longer outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion or exchange of such securities.
For the purposes of this paragraph (e), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.
(f) Triggering Distribution.
In case the Company shall, by dividend or otherwise, at any time distribute
(a "Triggering Distribution") to all or substantially all holders of its Common
Stock cash in an aggregate amount that, together with the aggregate amount of
all cash distributions to all or substantially all holders of its Common Stock
made within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Exercise Price adjustment pursuant to
this Section 9 has been made, exceeds 7.5% of the product of the Current Market
Price per share of Common Stock on the Business Day (the "Determination Date")
immediately preceding the day on which such Triggering Distribution is declared
by the Company multiplied by the number of shares of Common Stock outstanding on
such date, the Exercise Price shall be adjusted in accordance with this formula:
E' = E x ((M-D)/M)
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
M = the Current Market Price per share on the date of issuance of
the Triggering Distribution.
D = the amount of cash (plus the fair market value of other
consideration) distributed to all or substantially all holders of
Common Stock within the 12 months
12
preceding the date of the payment of the Triggering Distribution
(including, without limitation, the Triggering Distribution)
applicable to one share of Common Stock (determined on the basis
of the number of shares of Common Stock outstanding on the
Determination Date).
Such reduction shall become effective immediately prior to the opening of
business on the day following the date on which the Triggering Distribution
is paid. For the purposes of this paragraph (f), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock.
(g) Change of Control.
(i) In the event of a Change of Control, each Holder of Warrants
will, if the Current Market Price of the Company's Common Stock
as of the date of consummation of such Change of Control is less
than the Exercise Price, have a one time option, exercisable at
any time within 90 days after a Change of Control is consummated
(the "Change of Control Exercise Period"), to convert all of
their outstanding shares of Convertible Preferred Stock into
shares of the Common Stock at an adjusted Exercise Price (the
"Adjusted Exercise Price") equal to the greater of (1) the last
reported sale price for one share of the Common Stock in an
arm's-length transaction as of the date of the Change of Control
and (2) $12.96 (such dollar amount to be adjusted for
transactions in a manner consistent with the other adjustments to
the Exercise Price contemplated by this Section 9). In lieu of
issuing the shares of the Company's Common Stock issuable upon
exercise pursuant to adjustment described above in the event of a
Change of Control, the Company may, at its option, make a cash
payment equal to the Current Market Price of such Common Stock
otherwise issuable.
(ii) Promptly upon the consummation of a Change of Control, the
Company shall mail a notice to each Holder describing the
transaction or transactions that constitute such Change of
Control and stating: (1) that the Change of Control has taken
place and that the Holders have an option to exercise the
Warrants at the Adjusted Exercise Price; (2) the Adjusted
Exercise Price applicable to any conversion during the Change of
Control Exercise Period; (3) that any Warrants not exercised will
be assumed by the successor corporation if not the Company, and
will continue to be entitled to all the rights and privileges
afforded to it by this Warrant Agreement; (4) that Holders
electing to have any Warrants exercised pursuant to a Change of
Control exercise will be required to surrender Warrants, with the
form entitled "Option of Holder to Elect Exercise" on the reverse
of the Warrants completed, to the Company at the address
specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control exercise date
(the "Change of Control Exercise Date") specified in the notice,
which Change of Control Exercise Date shall be no earlier than
the expiration of the Change of Control Exercise Period; (5) that
Holders will be entitled to withdraw their election if the
Company receives, not later than the close of business on the
second Business Day preceding the Change of Control Exercise
Date, a telegram, facsimile transmission or letter setting forth
the name of the Holder, the number of Warrants delivered for
exercise, and a
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statement that such Holder is withdrawing his election to have
the Warrants exercised; and (6) that the Holder electing to
exercise its Warrants must exercise all of its outstanding
Warrants.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Warrant Agreement are applicable.
If this Section 9(g) applies, Sections 9 (a), (b), (c), (d), (e) and (f)
hereof do not apply.
(h) Other Transactions or Events.
In addition, in the event that any other transaction or event occurs as to
which the foregoing exercise price adjustment provisions are not strictly
applicable but the failure to make any adjustment would adversely affect the
exercise rights represented by the Warrants in accordance with the essential
intent and principles of such provisions, then, in each such case, either (i)
the Company shall appoint an investment banking firm of recognized national
standing, or any other financial expert that does not (or whose directors,
officers, employees, affiliates or stockholders do not) have a direct or
material indirect financial interest in the Company or any of its Subsidiaries,
who has not been, and, at the time it is called upon to give independent
financial advice to the Company, is not (and none of its directors, officers,
employees, affiliates or stockholders are) a promoter, director or officer of
the Company or any of its Subsidiaries, which will give their opinion upon or
(ii) the Board of Directors of the Company (the "Board of Directors") shall
determine, consistent with the Board of Directors' fiduciary duties to the
Company's stockholders, the adjustment, if any, on a basis consistent with the
essential intent and principles established in the foregoing exercise price
adjustment provisions, necessary to preserve, without dilution, the exercise
rights represented by the Warrants. Upon receipt of such opinion or
determination, the Company shall promptly mail a copy thereof to the Holders of
the Warrants and will make the adjustments described therein.
(i) Consideration Received.
For purposes of any computation respecting consideration received pursuant
to Section 9 hereof, the following shall apply:
(i) in the case of the issuance of shares of Common Stock for
cash, the consideration shall be the amount of such cash,
provided that in no case shall any deduction be made for any
commissions, discounts or other expenses incurred by the
Company for any underwriting of the issue or otherwise in
connection therewith;
(ii) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair
market value thereof as determined in good faith by the Board of
Directors (irrespective of the accounting treatment thereof),
whose determination shall be conclusive, and described in a
Board resolution which shall be filed with the Warrant Agent;
(iii) whenever this Warrant Agreement calls for the determination of
"fair market value," such fair market value shall be determined
in good faith by the Board of Directors and as evidenced by a
written resolution thereof, and
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(iv) in the case of the issuance of Rights, the aggregate
consideration received therefor shall be deemed to be the
consideration received by the Company for the issuance of such
Rights, plus the additional consideration, if any, to be
received by the Company upon the conversion or exchange thereof
(the consideration in each case to be determined in the same
manner as provided in this Section 9(i))).
(j) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price will be required unless the cumulative
adjustments would require an increase or decrease of at least 1.0% in the
Exercise Price. Any adjustments that are not made shall be carried forward and
taken into account in any subsequent adjustment.
All calculations under this Section 9 shall be made to the nearest one-one
hundredth of a cent or to the nearest 1/1000th of a share, as the case may be.
(k) When No Adjustment Required.
No adjustment in the Exercise Price will be required under this Section 9
for (i) issuances to satisfy the Company's obligations to TdF in connection with
the pre-emptive rights granted to TdF under the Governance Agreement, dated as
of August 21, 1998, among the Company, TdF and certain subsidiaries thereof,
except to the extent that an adjustment was made in connection with the issuance
that triggered the pre-emptive rights, (ii) issuances of Common Stock or Rights
to Persons who are not Affiliates of the Company as consideration for the
acquisition of stock or assets to be used in the principal business of the
Company or any ancillary or related business, (iii) rights to purchase Common
Stock pursuant to a Company plan for reinvestment of dividends or interest, (iv)
any change in the par value or no par value of the Common Stock, and in no event
shall any adjustment be made under this Section 9 that would reduce the Exercise
Price below the par value of the Common Stock, (v) Common Stock issued to the
Company's employees under bona fide employee benefit plans adopted by the Board
of Directors and approved by the holders of Common Stock when required by law,
(vi) Common Stock issued in a bona fide public offering pursuant to a firm
commitment underwriting, (vii) Common Stock issued to acquire, or in the
acquisition of, all or any portion of a business as a going concern, in an
arm's-length transaction between the Company and an unaffiliated third party,
whether such acquisition shall be effected by purchase of assets, exchange of
securities, merger, consolidation or otherwise, or (viii) the exercise of
Warrants or the conversion or exchange of securities convertible or exchangeable
into Common Stock, the issuance of which was otherwise covered by this Section
9. If an adjustment is made to the Exercise Price upon the establishment of a
record date for a distribution subject to this Section 9 and if such
distribution is subsequently cancelled, the Exercise Price then in effect shall
be readjusted, effective as of the date when the Board of Directors of the
Company determines to cancel such distribution, to the Exercise Price that would
have been in effect if such record date had not been fixed. No adjustment in
the Exercise Price need be made under this Section 9 if the Company issues or
distributes to each Holder of Warrants the shares of Common Stock, evidences of
indebtedness, assets or Rights referred to in this Section 9 that each Holder
would have been entitled to receive had the Warrants been exercised prior to
the happening of such event or the record date with respect thereto.
No adjustment need be made for a transaction referred to in Sections 9(a),
(b), (c), (d), (e) and (f) hereof, if Warrant Holders are to participate in the
transaction on a basis and with notice that the Board of Directors determines to
be fair and appropriate in light of the basis and notice on which holders of
Common Stock participate in the transaction.
15
To the extent the Warrants become convertible into cash, no adjustment need
be made thereafter as to the cash. Interest will not accrue on the cash.
(l) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 13 hereof.
(m) Voluntary Reduction.
The Company may from time to time reduce the Exercise Price by any amount
for any period of time if the period is at least 20 Business Days or such longer
period as may be required by law and if the reduction is irrevocable during the
period; provided, however, that in no event may the Exercise Price be less than
the par value of a share of Common Stock.
Whenever the Exercise Price is reduced, the Company shall mail to Warrant
Holders a notice of the reduction. The Company shall mail the notice at least
15 days before the date the reduced Exercise Price takes effect. The notice
shall state the reduced Exercise Price and the period in which it will be in
effect.
A reduction of the Exercise Price does not change or adjust the Exercise
Price otherwise in effect for purposes of Sections 9(a), (b), (c), (d), (e) and
(f) hereof.
(n) Reorganization of the Company.
If the Company consolidates or merges with or into, or transfers or leases
all or substantially all its assets to, any Person, upon consummation of such
transaction the Warrants shall automatically become exercisable for the kind and
amount of securities, cash, or other assets which the Holder of a Warrant would
have owned immediately after the consolidation, merger, transfer or lease if the
Holder had exercised the Warrant immediately before the effective time of the
transaction. Concurrently with the consummation of such transaction, the
corporation formed by or surviving any such consolidation or merger if other
than the Company, or the Person to which such sale or conveyance shall have been
made, shall enter into a supplemental Warrant Agreement so providing and further
providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in this Section. The successor
Company shall mail to Warrant Holders a notice describing the supplemental
Warrant Agreement.
If the issuer of securities deliverable upon exercise of Warrants under the
supplemental Warrant Agreement is an Affiliate of the formed, surviving,
transferee or lessee corporation, that issuer shall join in the supplemental
Warrant Agreement.
If this subsection (n) applies, subsection (a), (b), (c), (d), (e), (f) and
(g) of this Section 9 do not apply.
(o) Notice of Certain Transactions.
If (i) the Company takes any action that would require an adjustment in the
Exercise Price pursuant to Sections 9(a), (b), (c), (d), (e), (f) or (g) hereof,
(ii) the Company takes any action that would require a supplemental Warrant
Agreement pursuant to Section 9(g) hereof, or (iii) there is a liquidation or
dissolution of the Company, then the Company shall mail to Holders a notice
stating the proposed
16
record date for a dividend or distribution or the proposed effective date of a
subdivision, combination, reclassification, consolidation, merger, transfer,
lease, liquidation or dissolution. The Company shall mail the notice at least 15
days before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
(p) Company Determination Final.
Any determination that the Company or the Board of Directors must make
pursuant to this Section 9 is conclusive.
(q) Warrant Agent's Disclaimer.
The Warrant Agent has no duty to determine when an adjustment under this
Section 9 should be made, how it should be made or what it should be. The
Warrant Agent has no duty to determine whether any provisions of a supplemental
Warrant Agreement under Section 9(g) hereof are correct. The Warrant Agent
makes no representation as to the validity or value of any securities or assets
issued upon exercise of Warrants. The Warrant Agent shall not be responsible
for the Company's failure to comply with this Section 9.
(r) When Issuance or Payment May Be Deferred.
In any case in which this Section 9 shall require that an adjustment in the
Exercise Price be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event (i) issuing to the
Holder of any Warrant exercised after such record but prior to such event date
the Warrant Shares and other Capital Stock of the Company, if any, issuable upon
such exercise over and above the Warrant Shares and other Capital Stock of the
Company, if any, issuable upon such exercise on the basis of the Exercise Price
in effect immediately prior to such record date and (ii) paying to such Holder
any amount in cash in lieu of a fractional share pursuant to Section 12 hereof;
provided that the Company shall deliver to such Holder an appropriate instrument
evidencing such Holder's right to receive such additional Warrant Shares, other
Capital Stock and cash upon the occurrence of the event requiring such
adjustment.
(s) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this Section 9, each
Warrant outstanding prior to the making of the adjustment in the Exercise Price
shall thereafter evidence the right to receive upon payment of the adjusted
Exercise Price that number of shares of Common Stock (calculated to the nearest
hundredth) obtained from the following formula:
E
N'= N x -
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise
of a Warrant by payment of the adjusted Exercise Price.
N = the number or Warrant Shares previously issuable upon
exercise of a Warrant by payment of the Exercise Price prior
to adjustment.
17
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
Section 10. Statement on Warrants.
Irrespective of any adjustment in the Exercise Price or the number or kind
of shares issuable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
Section 11. Capital and Ownership Structure.
The Company (a) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock on the exercise of the Warrants from
time to time outstanding and (b) will not take any action which results in any
adjustment of the Exercise Price if the total number of Warrant Shares issuable
after the action upon the exercise of all of the Warrants would exceed the total
number of shares of Common Stock then authorized by the Company's certificate of
incorporation and available for the purposes of issue upon such exercise.
Section 12. Fractional Interest.
The Company shall not be required to issue fractional shares of Common
Stock on the exercise of Warrants. If more than one Warrant shall be presented
for exercise in full at the same time by the same Holder, the number of full
shares of Common Stock which shall be issuable upon such exercise shall be
computed on the basis of the aggregate number of shares of Common Stock
acquirable on exercise of the Warrants so presented. If any fraction of a share
of Common Stock would, except for the provisions of this Section, be issuable on
the exercise of any Warrant (or specified portion thereof), the Company shall
direct the Transfer Agent to pay an amount in cash calculated by it to equal the
then Current Market Price per share multiplied by such fraction computed to the
nearest whole cent less such fraction of the Exercise Price. The Holders, by
their acceptance of the Warrant Certificates, expressly waive any and all rights
to receive any fraction of a share of Common Stock or a stock certificate
representing a fraction of a share of Common Stock.
Section 13. Notices to Warrant Holders.
Upon any adjustment of the Exercise Price pursuant to Section 9 hereof, the
Company shall provide to Holders of the Warrants reasonable notice of any event
that would result in an adjustment to the Exercise Price pursuant to Section 9
hereof so as to permit the Holders to exercise the Warrants prior to the
occurrence of such event.
Upon any adjustment of the Exercise Price pursuant to Section 9, the
Company shall promptly thereafter (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of nationally recognized
standing selected by the Board of Directors of the Company (who may be the
regular auditors of the Company) setting forth the Exercise Price after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such calculations are based and setting forth the number of
Warrant Shares (or portion thereof) issuable after such adjustment in the
Exercise Price, upon exercise of a Warrant and payment of the adjusted Exercise
Price, which certificate shall be conclusive evidence of the correctness of the
matters set forth therein, and (ii) cause to
18
be given to each of the registered Holders of the Warrant Certificates at his
address appearing on the Warrant register written notice of such adjustments by
first-class mail, postage prepaid. The Warrant Agent shall be entitled to rely
on the above-referenced accountant's certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same
from time to time to any Holder desiring an inspection thereof during reasonable
business hours. The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder to determine whether any facts exist that may
require any adjustment of the number of shares of Common Stock or other stock or
property issuable on exercise of the Warrants or the Exercise Price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed in making such adjustment or the validity or
value (or the kind or amount) of any shares of Common Stock or other stock or
property which may be issuable on exercise of the Warrants. The Warrant Agent
shall not be responsible for any failure of the Company to make any cash payment
or to issue, transfer or deliver any shares of Common Stock or stock
certificates or other common stock or property upon the exercise of any Warrant.
In case:
(a) the Company shall authorize the issuance to all holders of shares of
Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or
warrants; or
(b) the Company shall authorize the distribution to all holders of shares
of Common Stock of evidences of its indebtedness or assets (other than
cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends payable in shares of Common
Stock or distributions referred to in Section 9(j) hereof); or
(c) of any consolidation or merger to which the Company is a party and for
which approval of any shareholders of the Company is required, or of
the conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change of
Common Stock issuable upon exercise of the Warrants (other than a
change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination),
or a tender offer or exchange offer for shares of Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; or
(e) a Change of Control occurs; or
(f) the Company proposes to take any other action that would require an
adjustment of the Exercise Price or the number of Warrant Shares
pursuant to Section 9;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the registered Holders of Warrant Certificates at such
Holder's address appearing on the Warrant register, at least 20 days (or 10 days
in any case specified in clauses (a) or (b) above) prior to the applicable
record date hereinafter specified, or promptly in the case of events for which
there is no record date, by first class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common Stock
to be entitled to receive any such rights, options, warrants or distribution are
to be determined, or (ii) the initial expiration date set forth in any tender
offer or exchange offer for shares of Common Stock, or (iii) the date on which
any such consolidation, merger, conveyance, transfer, dissolution, liquidation
or winding up or Change of Control is expected to become effective or
19
consummated, and the date as of which it is expected that holders of record of
shares of Common Stock shall be entitled to exchange such shares for securities
or other property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up or Change of Control. The failure to give the notice required by this Section
13 or any defect therein shall not affect the legality or validity of any
distribution, right, option, warrant, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up, or Change of Control or the
vote upon any action. Nothing contained in this Agreement or in any of Warrant
Certificates shall be construed as conferring upon the Holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
Section 14. Merger, Consolidation or Change of Name of Warrant Agent.
Any corporation into which the Warrant Agent may be merged or with which it
may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent under
the provisions of Section 16 hereof. Any such successor Warrant Agent shall
promptly cause notice of its succession as Warrant Agent to be mailed (by first
class mail, postage prepaid) to each Holder at such Holder's last address as
shown on the register maintained by the Warrant Agent pursuant this Agreement.
In case at the time such successor to the Warrant Agent shall succeed to the
agency created by this Agreement, and in case at that time any of Warrant
Certificates shall have been countersigned but not delivered, any such successor
to the Warrant Agent may adopt the countersignature of the original Warrant
Agent; and in case at that time any of Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor to the Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force and effect provided in the Warrant
Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
Section 15. Warrant Agent.
The Warrant Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the Holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall
be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the
distribution of the Warrant Certificates except as herein otherwise
provided.
20
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the
Company.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall
incur no liability or responsibility to the Company or to any Holder
of any Warrant Certificate in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the
opinion or the advice of such counsel.
(d) Before the Warrant Agent acts or refrains from acting, it may require
an officer's certificate or an opinion of counsel, or both. The
Warrant Agent shall incur no liability or responsibility to the
Company or to any Holder of any Warrant Certificate for any action
taken in reliance on any Warrant Certificate, certificate of shares,
notice, resolution, waiver, consent, order, certificate, or other
paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes
and governmental charges and other charges of any kind and nature
reasonably incurred by the Warrant Agent in the execution of this
Agreement and to indemnify the Warrant Agent, its directors, officers,
employees and agents and save each of them harmless against any and
all liabilities, including judgments, reasonable costs and counsel
fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement or arising out of or in connection with
its or, its directors, officers, employees and agents performance of
its or their obligations or duties under this Agreement, except to the
extent such liabilities are attributable to its or their gross
negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more Holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security
and indemnity for any costs and expenses which may be incurred, but
this provision shall not affect the power of the Warrant Agent to take
such action as it may consider proper, whether with or without any
such security or indemnity. All rights of action under this Agreement
or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto,
and any such action, suit or proceeding instituted by the Warrant
Agent shall be brought in its name as Warrant Agent and any recovery
of judgment shall be for the ratable benefit of the Holders of the
Warrants, as their respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer, employee or
agent of it, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with
or lend money to the Company or otherwise act as fully and freely as
though it were not Warrant Agent under this Agreement. Nothing herein
shall preclude
21
the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for
anything which it may do or refrain from doing in connection with
this Agreement except for its own gross negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder of any Warrant Certificate to make
or cause to be made any adjustment of the Exercise Price or
number of the Warrant Shares or other securities or property
deliverable as provided in this Agreement, or to determine
whether any facts exist which may require any of such
adjustments, or with respect to the nature or extent of any such
adjustments, when made, or with respect to the method employed in
making the same. The Warrant Agent shall not be accountable with
respect to the validity or value or the kind or amount of any
Warrant Shares or of any securities or property which may at any
time be issued or delivered upon the exercise of any Warrant or
with respect to whether any such Warrant Shares or other
securities will when issued be validly issued and fully paid and
nonassessable, and makes no representation with respect thereto.
SECTION 16. Resignation and Removal of Warrant Agent; Appointment of
Successor.
No resignation or removal of the Warrant Agent and no appointment of a
successor warrant agent shall become effective until the acceptance of
appointment by the successor warrant agent as provided herein. The Warrant
Agent may resign its duties and be discharged from all further duties and
liability hereunder (except liability arising as a result of the Warrant Agent's
own negligence or willful misconduct) after giving written notice to the
Company. The Company may remove the Warrant Agent upon written notice, and the
Warrant Agent shall thereupon in like manner be discharged from all further
duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall,
at the Company's expense, cause to be mailed (by first class mail, postage
prepaid) to each Holder of a Warrant at his last address as shown on the
register of the Company maintained by the Warrant Agent a copy of said notice of
resignation or notice of removal, as the case may be. Upon such resignation or
removal, the Company shall appoint in writing a new warrant agent. If the
Company shall fail to make such appointment within a period of 30 days after it
has been notified in writing of such resignation by the resigning Warrant Agent
or after such removal, then the resigning Warrant Agent or the Holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a new warrant agent. Any new warrant agent, whether appointed by the Company or
by such a court, shall be a corporation doing business under the laws of the
United States or any state thereof, in good standing and having a combined
capital and surplus of not less than $50,000,000. The combined capital and
surplus of any such new warrant agent shall be deemed to be the combined capital
and surplus as set forth in the most recent annual report of its condition
published by such warrant agent prior to its appointment, provided that such
reports are published at least annually pursuant to law or to the requirements
of a federal or state supervising or examining authority. After acceptance in
writing of such appointment by the new warrant agent, it shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named herein as the Warrant Agent, without any further assurance,
conveyance, act or deed; but if for any reason it shall be necessary or
expedient to execute and deliver any further assurance, conveyance, act or deed,
the same shall be done at the expense of the Company and shall be legally and
validly executed and delivered by the resigning or removed Warrant Agent. Not
later than the effective date of any such appointment, the Company shall give
notice thereof to the resigning or removed Warrant Agent. Failure
22
to give any notice provided for in this Section, however, or any defect therein,
shall not affect the legality or validity of the resignation of the Warrant
Agent or the appointment of a new warrant agent, as the case may be.
Section 17. Registration Rights.
The Company and the Warrant Agent acknowledge that Holders shall have the
registration rights set forth in the Registration Rights Agreement.
Section 18. Certain Covenants.
(a) Reports.
Whether or not required by the Commission, so long as any Warrants are
outstanding, the Company shall furnish to the Holders of Warrants all current,
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 8-K, 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of the Company and its
consolidated Subsidiaries (showing in reasonable detail, in the footnotes to the
financial statements and in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" (in each case to the extent not
prohibited by the Commission rules and regulations).
(b) Merger, Consolidation, or Sale of Assets.
(i) The Company shall not:
(A) consolidate or merge with or into (whether or not the
Company is the surviving corporation); or
(B) sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties
or assets in one or more related transactions, to
another corporation, Person or entity, unless:
1. either (A) the Company is the surviving
corporation; or (B) the entity or the Person formed by or
surviving any such consolidation or merger (if other than
the Company) or to which the sale, assignment, transfer,
lease, conveyance or other disposition shall have been made
is a corporation organized or existing under the laws of the
United States, any state thereof or the District of
Columbia;
2. in the event of any such consolidation merger,
sale, assignment, transfer, lease, conveyance or other
disposition the agreement implementing such consolidation,
merger, sale, assignment, transfer, lease, conveyance or
disposition shall provide that the Warrants are converted
into warrants of such surviving entity or Person, having in
respect of such surviving entity or Person as nearly as
practicable the same powers, preference and relative,
participating, optional or other special rights that the
Warrants had immediately prior to such transaction (except
that no adjustments on exercise rights shall be required
pursuant to this Section 18(b)); and
23
3. the Company delivers to the Holders of the
Warrants a certificate of an Officer of the Company and an
Opinion of Counsel stating that such consolidation merger or
transfer complies with this Warrant Agreement.
(c) No Amendment to the Registration Rights Agreement.
The Company will not amend the Registration Rights Agreement without the
consent of the Holders of at least a majority of the outstanding Warrants
(excluding Warrants held by the Company of any of its Subsidiaries, other than
amendments that are not adverse in any respect to Holders of the Warrants.
Section 19. Notices to Company and Warrant Agent.
Any notice or demand authorized by this Agreement to be given or made by
the Warrant Agent or by the Holder of any Warrant Certificate to or on the
Company shall be sufficiently given or made five Business Days after being
deposited in the mail, first class or registered, postage prepaid; when received
if personally delivered; when transmitted if transmitted by telecopy upon
receipt of telephonic or electronic confirmation; and the day after it is sent,
if sent for next day delivery to a domestic address by recognized overnight
delivery service (e.g., Federal Express). In each case, notice shall be sent
to:
Crown Castle International Corp.
510 Bering Drive
Suite 500
Houston, TX 77057
Telecopier No.: (713) 570-3150
Attention: Chief Financial Officer
In case the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by the
Holder(s) of any Warrant Certificate to the Warrant Agent shall be sufficiently
given five days after being deposited in the mail, first-class or registered,
postage prepaid; when received if personally delivered; when transmitted if
transmitted by telecopy upon receipt of telephonic or electronic confirmation;
the day after it is sent, if sent for next day delivery to a domestic address by
recognized overnight delivery service (e.g., Federal Express); and upon receipt,
if sent by certified or registered mail, return receipt requested. In each
case, notice shall be sent to:
United States Trust Company of New York
114 West 47/th/ Street
New York, New York 10036-1532
Telecopier No.: (212) 852-1627
Attention: Corporate Trust Administration
Section 20. Entire Agreement, Supplements and Amendments.
This Agreement, taken together with the other documents and instruments
attached hereto as exhibits or schedules or delivered in connection herewith,
constitutes the entire agreement, and supersedes, all prior agreements and
understandings, both written and oral (including the Commitment
24
Letter dated September 14, 1999, among the Company and GE Capital Services
Structured Finance Group, Inc.) with respect to the offer and sale of the
Warrants by the Company to the Holders, and are not intended to confer upon any
person other than the Company and the Holders any rights or remedies. The
Company and the Warrant Agent may from time to time supplement or amend this
Agreement without the approval of any Holders of Warrant Certificates in order
to cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not in any way materially adversely affect the interests of any
Holder of Warrant Certificates. Any amendment or supplement to this Agreement
that has a material adverse effect on the interests of Holders shall require the
written consent of Holders representing a majority of the then outstanding
Warrants (excluding Warrants held by the Company or any of its Subsidiaries).
The consent of each Holder of a Warrant affected shall be required for any
amendment pursuant to which the Exercise Price would be increased or the number
of Warrant Shares purchasable upon exercise of Warrants would be decreased
(other than pursuant to adjustments provided by this Agreement). The Warrant
Agent shall be entitled to receive and, subject to Section 15, shall be fully
protected in relying upon, an officers' certificate and opinion of counsel as
conclusive evidence that any such amendment or supplement is authorized or
permitted hereunder, that it is not inconsistent herewith, and that it will be
valid and binding upon the Company in accordance with its terms.
Section 21. Enforcement
The Holders agree that irreparable damage would occur and that the Company
would not have any adequate remedy at law in the event that Section 3.5 of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Company shall be entitled
to an injunction or injunctions to prevent breaches of Section 3.5 of this
Agreement and to enforce specifically the terms and provisions of Section 3.5 of
this Agreement, this being in addition to any other remedy to which the Company
is entitled at law or in equity.
Section 22. Successors.
All the covenants and provisions of this Agreement by or for the benefit of
the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 23. Governing Law.
THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES.
Section 24. Consent to Jurisdiction.
Each party hereto irrevocably submits to the non-exclusive jurisdiction of
the courts of the United States District Court for the Southern District of New
York (or, if subject matter jurisdiction in that court is not available, in any
state court located within the city of New York) over any dispute arising out of
or relating to this Agreement or any agreement or instrument contemplated hereby
or entered into in connection herewith or any of the transactions contemplated
hereby or thereby. Each party hereto irrevocably consents to the service of any
and all process in any action or proceeding arising out of or
25
relating to this Agreement by the mailing of copies of such process to such
party at their address specified in Section 19.
Section 25. Termination.
This Agreement shall terminate at 5:00 p.m. New York City time on November
19, 2004. Notwithstanding the foregoing, this Agreement will terminate on any
earlier date if all Warrants have been exercised.
Section 26. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent and the Holders of the
Warrant Certificates any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the Holders of the Warrant Certificates.
All rights of action in respect of this Agreement are vested in the Holders
of the Warrants, and any Holder of any Warrant, without the consent of the
Warrant Agent or the Holder of any other Warrant, may, on such Holder's own
behalf and for such Holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such Holder's rights hereunder, including the right
to exercise, exchange or surrender for purchase such Holder's Warrants in the
manner provided in this Agreement.
Section 27. Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
CROWN CASTLE INTERNATIONAL CORP.
By:________________________________________________
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK
By:________________________________________________
Name:
Title:
EXHIBIT A
[Form of Warrant Certificate]
[Face]
No. _______ ____ Warrants
CUSIP No. ________
Warrant Certificate
CROWN CASTLE INTERNATIONAL CORP.
This Warrant Certificate certifies that Cede & Co., or its registered
assigns, is the registered holder of Warrants (the "Warrants") to purchase
Common Stock, par value $0.01 (the "Common Stock"), of Crown Castle
International Corp., a Delaware corporation (the "Company"). Each Warrant
entitles the registered holder upon exercise at any time from 9:00 a.m. on the
Exercise Date referred to below (the "Exercise Date") to receive from the
Company 1,000,000 fully paid and nonassessable shares of Common Stock (the
"Warrant Shares") at the initial exercise price (the "Exercise Price") of
$26.875 per share payable upon surrender of this Warrant Certificate and payment
of the Exercise Price, only in the manner provided in the Warrant Agreement, at
the office or agency of the Warrant Agent, but only subject to the conditions
set forth herein and in the Warrant Agreement referred to on the reverse hereof.
The Exercise Price and number of Warrant Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York.
IN WITNESS WHEREOF, Crown Castle International Corp. has caused this
Warrant Certificate to be signed.
CROWN CASTLE INTERNATIONAL CORP.
By:_________________________________
Name:
Title:
Dated: November 19, 1999
A-1
Countersigned:
United States Trust Company of New York,
as Warrant Agent
By:___________________________
Authorized Signature
A-2
[Form of Warrant]
[Reverse]
THE SECURITIES EVIDENCED OR CONSTITUTED HEREBY HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION
PROVISIONS OF SAID ACT HAVE BEEN COMPLIED WITH OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants entitling the Holder on exercise to receive One
Million (1,000,000) shares of Common Stock, par value $0.01 (the "Common
Stock"), of Crown Castle International Corp., a Delaware Corporation (the
"Company"), and are issued or to be issued pursuant to a Warrant Agreement dated
as of November 19, 1999 (the "Warrant Agreement"), duly executed and delivered
by the Company to United States Trust Company of New York, as warrant agent (the
"Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in
and made a part of this instrument and is hereby referred to for a description
of the rights, limitation of rights, obligations, duties and immunities
thereunder of the Warrant Agent, the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Warrant
Agreement.
Warrants may be exercised at any time from 9:00 a.m. on or after the
Exercise Date. The Warrants will expire on the Expiration Date. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
this Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price at
the office of the Warrant Agent, all in accordance with the Warrant Agreement.
In the event that upon any exercise of Warrants evidenced hereby the number of
Warrants exercised shall be less than the total number of Warrants evidenced
hereby, there shall be issued to the holder hereof or his assignee a new Warrant
Certificate evidencing the number of Warrants not exercised. No adjustment shall
be made for any dividends on any Common Stock issuable upon exercise of this
Warrant.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price set forth on the face hereof and/or the number of shares of
Common Stock issuable upon the exercise of each Warrant shall, subject to
certain conditions, be adjusted. No fractions of a share of Common Stock will be
issued upon the exercise of any Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant Agreement.
The Warrant Agreement, together with the Warrant Registration Rights
Agreement referred to therein, provides that the Company shall be bound by
certain registration obligations with respect to the Common Stock issuable upon
exercise of the Warrants.
A-3
Warrant Certificates, when surrendered at the office of the Warrant Agent
by the registered holder thereof in person or by legal representative or
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
A-4
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _______ shares of Common
Stock and herewith (i) tenders payment for such shares to the order of CROWN
CASTLE INTERNATIONAL CORP., in the amount of $ __________ or (ii) tenders
warrants and exercises its right to Warrant Shares on a net basis, in
accordance with the terms hereof. The undersigned requests that a certificate
for such shares be registered in the name of ________________, whose address is
__________________________ and that such shares be delivered to _______________,
whose address is _________________. If said number of shares is less than all of
the shares of Common Stock purchasable hereunder, the undersigned requests that
a new Warrant Certificate representing the remaining balance of such shares be
registered in the name of ________________________, whose address is __________,
and that such Warrant Certificate be delivered to whose address is ____________.
________________________________
Signature
Date:
________________________________
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Warrant Agent in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-5
EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
B-1