Exhibit 99.2
SUPPLEMENTAL AGREEMENT (the "Agreement") dated effective as of May 17, 1999,
among CROWN CASTLE INTERNATIONAL CORP. (formerly named Castle Tower Holding
Corp.), a Delaware corporation (the "Company"), TELEDIFFUSION DE FRANCE
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INTERNATIONAL S.A. ("TDF"), a company incorporated in France, and DIGITAL FUTURE
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INVESTMENTS B.V., a wholly owned indirect subsidiary of TeleDiffusion de France
S.A. and a company organized under the laws of the Netherlands ("DFI (BV)").
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W I T N E S S E T H :
WHEREAS the parties hereto are parties to a Governance Agreement (the
"Governance Agreement") dated August 21, 1998; and
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WHEREAS the Company and TDF desire to enter into this Amendment to clarify
and modify certain of the rights and obligations of the Company and TDF with
respect to the Anti-dilutive Rights under the Governance Agreement.
NOW, THEREFORE, the Company and TDF, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, agree as follows:
1. Unless otherwise specifically defined herein, each capitalized term
used herein has the meaning assigned to such term in the Governance Agreement.
2. ARTICLE II of the Governance Agreement is hereby amended and restated to
read in its entirety as follows:
ARTICLE II
Anti-dilution
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SECTION 2.01. Anti-dilutive Rights. (a) Except as provided in Section
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2.01(d) below, so long as TDF is Qualified, the Company shall not issue, sell or
transfer any Equity Securities to any person (other than in connection with the
IPO but only to the extent that the TDF Consolidated Group Interest is not
thereby reduced to less than 20%) unless TDF is offered in writing the right to
purchase, at a price in cash determined pursuant to Section 2.01(c), an amount
of such Equity Securities (the "Maintenance Securities") as is necessary for the
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TDF Group to maintain the TDF Consolidated Group Interest, the TDF Group
Interest and the TDF Non-Voting Equity Interest (as defined), as applicable, as
would exist immediately prior to the time the Company makes a written offer (a
"Maintenance Offer") to TDF to sell such Maintenance Securities to TDF pursuant
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to Section 2.01(b) (the "Anti-dilutive Rights"); provided that, with respect to
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the initial issuance by the Company following the date of this Agreement of
Equity Securities which are not Voting Securities, the TDF Non-Voting Equity
Interest shall be deemed to be equal to the TDF Consolidated Group Interest or
the TDF Group Interest, as
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applicable, and thereafter "TDF Non-Voting Equity Interest" shall mean the
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percentage of non-voting Equity Securities owned, directly or indirectly, by the
TDF Group.
(b) The Company shall be obligated to make a Maintenance Offer with
respect to an issuance, sale or transfer of Equity Securities no later than the
time of such issuance, sale or transfer. The Company shall be entitled to make
any such Maintenance Offer earlier than such date only if at such earlier time
the number of Equity Securities to be issued, sold or transferred in such
transaction is fixed and the price per share of such Equity Securities in such
transaction has been determined pursuant to Section 2.01(c) below. Any such
Maintenance Offer shall specify the number of Equity Securities being issued,
sold or transferred (other than to TDF) and the number and price of the
Maintenance Securities being offered to TDF as a result thereof; provided that,
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the number of Maintenance Securities with respect to an issuance, sale or
transfer of Equity Securities required to be offered in any Maintenance Offer
shall be determined as of the time the Company makes such Maintenance Offer.
TDF shall have the right to accept such Maintenance Offer for any or all of the
Maintenance Securities by delivery of a written acceptance delivered to the
Company within 30 Business Days after TDF's receipt of such Maintenance Offer
and, upon delivery of such acceptance, TDF shall be legally obligated to
purchase such Maintenance Securities, subject only to the issuance, sale or
transfer, as applicable, of the Equity Securities giving rise to TDF's Anti-
dilutive Rights. Notwithstanding the foregoing, if TDF delivers a written
acceptance for any or all of the Maintenance Securities offered in a Maintenance
Offer which the Company elected to deliver prior to the date of the issuance,
sale or transfer of the Equity Securities giving rise to such Maintenance Offer,
but such issuance, sale or transfer giving rise to such Maintenance Offer has
not been consummated within 60 Business Days of TDF's acceptance of such
Maintenance Offer, each of the Company's Maintenance Offer, TDF's acceptance of
such Maintenance Offer and such parties' rights and obligations with respect
thereto shall terminate, such prior Maintenance Offer shall be deemed not to
have been made by the Company and the Company's obligation to make a Maintenance
Offer with respect to such issuance, sale or transfer shall be reinstated. If
TDF does not deliver to the Company written notice of acceptance of any
Maintenance Offer within 30 Business Days after TDF's receipt of such
Maintenance Offer, TDF shall be deemed to have waived its right to purchase all
or any part of the Maintenance Securities set forth in such Maintenance Offer,
but TDF shall retain its rights under this Article II with respect to future
Maintenance Offers relating to other issuances, sales or transfers of Equity
Securities.
(c) The price in cash at which Maintenance Securities in respect of any
given issuance, sale or transfer of Equity Securities shall be offered to TDF
shall be determined as follows. In the case of Equity Securities being issued,
sold or transferred for cash or cash equivalents, the price shall be the same
price for which such Equity Securities are being issued, sold or transferred
(provided that, in the case of an underwritten or similar offering, TDF shall
have the benefit of any underwriting or similar discount). In the case of Equity
Securities being issued, sold or transferred for consideration other than for
cash or cash equivalents, the per share price shall be (i) in the case where the
parties in the transaction have agreed in writing on a value per Equity
Security, such agreed value, (ii) in the case where the parties in the
transaction have agreed in writing on a method for determining a value per
Equity Security, the value determined
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by such method and (iii) in the case where the parties in the transaction have
not agreed in writing on a value per Equity Security or a method for determining
such value, the value determined by dividing (A) the Fair Market Value (as
determined in good faith by the Board) of such non-cash consideration as of the
date the Board approves the transaction giving rise to such issuance, sale or
transfer of Equity Securities by (B) the number of Equity Securities being
issued, sold or transferred therefor.
(d) The Anti-dilutive Rights set forth above shall not apply to (i) the
grant or exercise of options to purchase Common Stock to employees, directors or
consultants of the Company or any of its Subsidiaries prior to the date of the
Exchange Agreement and listed on Schedule 6.32 to the Exchange Agreement or
otherwise pursuant to a stock option or similar executive employee benefit plan
in existence on the date hereof; (ii) the grant or exercise of options to
purchase Common Stock or the issuance of shares of Common Stock as compensation
in the ordinary course of business consistent with practice for public companies
of a size and nature (e.g., high growth companies), as determined by approval of
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a Special Majority Vote of the Board with a statement to such effect, as the
Company to employees or directors of the Company or any of its Subsidiaries or
otherwise pursuant to a stock option or similar executive or employee benefit
plan adopted by the Board after the Closing in the ordinary course of business
consistent with such practice; (iii) the grant or exercise of options to
purchase or the issuance of Common Stock of the Company as compensation in the
ordinary course of business consistent with past practice to consultants of the
Company or any of its Subsidiaries representing not more than 1% of the
aggregate amount of the Common Stock outstanding at the time of such grant or
issuance; (iv) the issuance of shares of Common Stock issuable upon conversion
of, or in respect of dividends on, the Senior Preferred Stock, or upon exercise
of the Senior Preferred Warrants; (v) securities issued pursuant to any stock
split, stock dividend, rights offering, recapitalization, reclassification or
similar transaction, which securities are issued pro rata among, and pro rata
within, all classes of stock which are subject to such stock split, stock
dividend, rights offering, recapitalization, reclassification or similar
transaction; (vi) securities issued upon conversion or exchange of any Equity
Security in connection with which TDF had been granted Anti-dilutive Rights upon
the issuance thereof in accordance with Section 2.01(a); and (vii) Voting
Securities issued upon exercise of the Rights (as defined in the Exchange
Agreement) pursuant to the Rights Plan (as defined in the Exchange Agreement);
provided that the action referred to in clauses (ii), (iii) or (v) of this
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Section 2.01(d), as the case may be, shall have been approved (to the extent
required) in accordance with the provisions of this Agreement.
(e) A closing for the purchase of Maintenance Securities pursuant to
Section 2.01(a) and 2.01(b) shall occur on (i) the date of the issuance, sale or
transfer of the Equity Securities giving rise to such purchase if TDF accepted
the applicable Maintenance Offer at least 10 Business Days prior to such date of
issuance, or if not, (ii) the date which is 10 Business Days after TDF's
acceptance of the applicable Maintenance Offer if the date of TDF's acceptance
is not at least 10 Business Days prior to the date of the issuance, sale or
transfer of the Equity Securities giving rise to such purchase, or in either
case, (iii) such other date as may be agreed to by TDF and the Company, in each
case at a time and place specified by TDF in a notice provided to the Company at
least 5 days prior to such closing date of the purchase of the Maintenance
Securities.
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In connection with such closing, the Company and TDF shall provide such
customary closing certificates and opinions as TDF or the Company, as
appropriate, shall reasonably request."
3. (a) SECTION 6.02(a) is hereby amended and restated to read in its
entirety as follows:
"(a) TDF agrees that at any time after July 1, 1999 but no later than the
second anniversary of the Closing (or, if an Unsolicited Offer or Special
Business Combination is outstanding on the date the Company delivers the Company
Call Notice (as defined below), on or after such date as is five days following
the termination or abandonment of such Unsolicited Offer or Special Business
Combination) unless (i) the TDF Rollup shall have previously been consummated,
(ii) the Common Stock Call Price shall be less than or equal to $60 (as adjusted
for any stock split, stock dividend, rights offering, recapitalization,
reclassification or other similar transaction), or (iii) a Business Combination
has been consummated, or an Unsolicited Offer or a Special Business Combination
is outstanding or has been consummated and TDF has exercised the CTSH Option
pursuant to Section 5.01(a)(x) above, the Company shall have the right in its
sole discretion (the "Company Call Right"), upon the delivery of a notice (the
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"Company Call Notice") by the Company to TDF, to require, subject to the
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satisfaction of the Conditions Precedent, subject to proviso (B) to clause (b)
below, TDF to transfer and deliver to the Company all, but not less than all
(except for one CTSH Ordinary Share), of the TDF CTSH Shares and the TDF CTSH
Warrants beneficially owned by the TDF Group in exchange for the TDF Put Shares,
the TDF CCIC Warrants and 100,000 shares of Class A Stock (as adjusted from time
to time after the date hereof in accordance with the provisions contained in
Section 1.02 of the Exchange Agreement)."
(b) In order to compensate TDF for certain possible adverse consequences
to the TDF Group as a result of the delivery of the Company Call Notice prior to
the second anniversary of the Closing, the Company agrees to satisfy $6,325,000
of the price otherwise payable by TDF on the exercise of any of its rights under
Section 2.01 as set out above.
(c) The requirement set forth in clause (ii)(A) of the definition of
"Qualified" in the Governance Agreement that the Company Call Right shall have
been exercised by the Company on the second anniversary of the Closing shall be
deemed to be satisfied in the event the Company exercises the Company Call Right
prior to the second anniversary of the Closing in accordance with the provisions
of this Agreement.
4. This Agreement shall be construed in accordance with and governed by
the law of the State of New York.
5. This Agreement may be executed in counterparts, all of which shall be
considered one and the same instrument, and if one or more such counterparts
have been signed by each of the parties and delivered to each other party (by
telecopy or otherwise) shall be deemed to be effective as of the date first
written above.
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6. Except as expressly modified and amended by this Agreement, the
Governance Agreement shall continue in full force and effect and is hereby
ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
CROWN CASTLE INTERNATIONAL CORP.,
By /s/ E. Xxxxx Xxxx
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Name: E. Xxxxx Xxxx
Title: Executive Vice President and General Counsel
TELEDIFFUSION DE FRANCE INTERNATIONAL S.A.,
By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chairman
DIGITAL FUTURE INVESTMENTS B.V.
By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: on behalf of
Telediffusion de France S.A., Managing Director
