GLOBAL SIGNAL INC.
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AMENDED AND RESTATED
INVESTOR AGREEMENT
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Dated as of March 31, 2004
AMENDED AND RESTATED
INVESTOR AGREEMENT
OF
GLOBAL SIGNAL INC.
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THIS AMENDED AND RESTATED INVESTOR AGREEMENT (this "Agreement"), dated
as of March 31, 2004, by and among (a) Global Signal Inc. (f/k/a Pinnacle
Holdings Inc.), a Delaware corporation (the "Company"), (b) Fortress Pinnacle
Acquisition LLC, a Delaware limited liability company ("Fortress"), (c)
▇▇▇▇▇▇▇▇▇ Capital Partners, L.P., a Delaware limited partnership, and its
related partnerships identified on the signature pages hereto (collectively,
"Greenhill") and (d) ▇▇▇▇▇▇ Capital Partners II, L.P., a Delaware limited
partnership, and its related partnerships identified on the signature pages
hereto (collectively, "▇▇▇▇▇▇"). Fortress, Greenhill, ▇▇▇▇▇▇ and the other
parties identified on the signature pages to the Original Investor Agreement (as
hereinafter defined) (other than the Company) are referred to herein each
individually as an "Investor" and collectively as the "Investors." Certain
capitalized terms used in this Agreement are defined in Article I hereof.
References to sections shall be to sections of this Agreement. This Agreement
amends and restates the Original Investor Agreement. The parties hereto and the
other parties to the Original Investor Agreement as of the date hereof shall be
deemed parties to this Agreement.
WHEREAS, the Company, Fortress, Greenhill and the other parties named
therein entered into an Investor Agreement, dated as of November 1, 2002, as
amended on October 29, 2003 (the "Original Investor Agreement"); and
WHEREAS, the Company, Fortress and Greenhill desire to amend and
restate the Original Investor Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the terms defined other than in this
Article I shall have the meanings indicated and, unless otherwise defined
herein, the following terms shall have the following meanings:
(a) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act; provided, that no Stockholder shall be
deemed an Affiliate of any other Stockholder solely by reason of any investment
in the Company.
(b) "Board" shall mean the board of directors of the Company.
(c) "Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
(d) "Common Stock" shall mean all shares of common stock now or
hereinafter issued and outstanding and any and all securities of any kind
whatsoever of the Company which may be issued and outstanding on or after the
date hereof in respect of, in exchange for, or upon conversion of shares of
Common Stock pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
(e) "Distribution in Kind" shall mean a transfer of shares of Common
Stock to certain Permitted Transferees of an Investor pursuant to a distribution
that is made pro rata to such Permitted Transferees in accordance with the
respective partnership or limited liability company agreement of such Investor
without payment of additional consideration therefor by such Permitted
Transferees.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(g) "Permitted Transferee" shall mean, with respect to each
Stockholder, (i) any other Stockholder, (ii) such Stockholder's Affiliates and
(iii) in the case of any Stockholder, (A) any general or limited partner of such
Stockholder, (B) any corporation, partnership, limited liability company or
other entity that is an Affiliate of such Stockholder or any general or limited
partner of such Stockholder (collectively, "Stockholder Affiliates"), (C) any
investment funds managed directly or indirectly by such Stockholder or any
Stockholder Affiliates (a "Stockholder Fund"), (D) any general or limited
partner of any Stockholder Fund, (E) any managing director, general partner,
director, limited partner, officer or employee of any Stockholder Affiliate, or
any spouse, lineal descendant, sibling, parent, heir, executor, administrator,
testamentary trustee, legatee or beneficiary of any of the foregoing Persons
described in this clause (E) (collectively, "Stockholder Associates") or (F) any
trust, the beneficiaries of which, or any corporation, limited liability company
or partnership, the stockholders, members or general or limited partners of
which consist solely of any one or more of such Stockholder, any general or
limited partner of such Stockholder, any Stockholder Affiliates, any Stockholder
Fund, any Stockholder Associates, their spouses or their lineal descendants.
(h) "Person" shall mean any individual, firm, corporation, partnership,
limited liability company or other entity, and shall include any successor (by
merger or otherwise) of such entity.
(i) "Public Offering" shall mean an offering of equity securities of
the Company pursuant to an effective registration statement under the Securities
Act,
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including an offering in which Investors are entitled to sell Common Stock
pursuant to the terms of this Agreement.
(j) "Registrable Amount" shall mean 5% of the issued and outstanding
Common Stock.
(k) "Registrable Securities" shall mean any Common Stock currently
owned or hereafter acquired by any Stockholder, including Common Stock issued
upon the exercise of the Warrants. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (x) a registration
statement registering such securities under the Securities Act has been declared
effective and such securities have been sold or otherwise transferred by the
holder thereof pursuant to such effective registration statement or (y) such
securities are sold in accordance with Rule 144 (or any successor provision)
promulgated under the Securities Act. Any provision of this Agreement measuring
ownership of a percentage or a pro rata portion of the Registrable Securities of
any Stockholder shall be deemed to include in the numerator the Common Stock
issuable upon exercise of the Warrants owned by such Stockholder and in the
denominator the Common Stock issuable upon exercise of all then outstanding
Warrants held by Stockholders.
(l) "Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(m) "Securities Purchase Agreement" shall mean the Securities Purchase
Agreement, dated as of April 25, 2002, as amended, by and among Fortress
Registered Investment Trust, a Delaware business trust, Greenhill, the Company
and Pinnacle Towers, Inc., a Delaware corporation.
(n) "Stockholder" shall mean (i) each Investor named on the signature
pages hereto and (ii) each Permitted Transferee or Third Party Transferee of
such Investor (other than another Investor) or Permitted Transferee or Third
Party Transferee thereof who is entitled to enforce the provisions of this
Agreement in accordance with the terms hereof, in the case of clauses (i) and
(ii), to the extent that such Investor (irrespective of whether or not such
Investor owns any Registrable Securities), such Permitted Transferee or such
Third Party Transferee, together with its respective Permitted Transferees
(other than any other Investors), hold at least a Registrable Amount.
(o) "Third Party Transferee" shall mean, with respect to each
Stockholder, any transferee of Registrable Securities, other than a Permitted
Transferee.
(p) "Underwritten Offering" shall mean a sale of securities of the
Company to an underwriter or underwriters for reoffering to the public.
(q) "Warrants" shall mean the Company's warrants to purchase up to an
aggregate of 615,000 shares of Common Stock, issued pursuant to the Warrant
Agreement, dated as of November 1, 2002, between the Company and Wachovia Bank,
N.A., as warrant agent.
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ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Demand Registration.
(a) Registration. At any time after the Effective Date (as
hereinafter defined), any Persons that on the date a Demand (as hereafter
defined) is made constitute a Stockholder (a "Requesting Stockholder") shall be
entitled to make a written request of the Company (a "Demand") for registration
under the Securities Act of an amount of Registrable Securities that, when taken
together with the amounts of Registrable Securities requested to be registered
under the Securities Act by such Requesting Stockholder's Affiliates, equals or
is greater than the Registrable Amount (based on the number of Registrable
Securities outstanding on the date such Demand is made) (a "Demand
Registration") and thereupon the Company will, subject to the terms of this
Agreement, use its commercially reasonable efforts to effect the registration
under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Requesting Stockholders for disposition in
accordance with the intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which the Company has
been requested to register pursuant to Section 2.1(b); and
(iii) all shares of Common Stock which the Company may elect
to register in connection with any offering of Registrable Securities pursuant
to this Section 2.1, but subject to Section 2.1(g);
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof) of the Registrable Securities and the additional
Common Stock, if any, to be so registered.
(b) Demands. A Demand shall specify: (i) the aggregate number of
Registrable Securities requested to be registered in such Demand Registration,
(ii) the intended method of disposition in connection with such Demand
Registration, to the extent then known and (iii) the identity of the Requesting
Stockholder (or Requesting Stockholders). Within five days after receipt of a
Demand, the Company shall give written notice of such Demand to any other
Persons that on the date a Demand is delivered to the Company constitute a
Stockholder. Subject to Section 2.1(g), the Company shall include in the Demand
Registration covered by such Demand all Registrable Securities with respect to
which the Company has received a written request for inclusion therein within
ten days after the Company's notice required by this paragraph has been given.
Such written request shall comply with the requirements of a Demand as set forth
in this Section 2.1(b).
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(c) Number of Demands. Each Stockholder shall be entitled to an
aggregate of three Demand Registrations.
(d) Effective Registration Statement. A Demand Registration shall
not be deemed to have been effected and shall not count as a Demand (i) unless a
registration statement with respect thereto has become effective and has
remained effective for a period of at least 60 days (or such shorter period in
which all Registrable Securities included in such Demand Registration have
actually been sold thereunder), (ii) if, after it has become effective, such
Demand Registration becomes subject to any stop order, injunction or other order
or requirement of the Commission or other governmental agency or court for any
reason or (iii) if the conditions to closing specified in the purchase agreement
or underwriting agreement entered into in connection with such Demand
Registration are not satisfied, other than by reason of some act or omission by
such Requesting Stockholders.
(e) Registration Statement Form. Demand Registrations shall be on
such appropriate registration form of the Commission as shall be selected by the
Requesting Stockholders and shall be reasonably acceptable to the Company.
(f) Restrictions on Demand Registrations. The Company shall not be
obligated to (i) maintain the effectiveness of a registration statement under
the Securities Act, filed pursuant to a Demand Registration, for a period longer
than 60 days or (ii) effect any Demand Registration (A) within six months of a
"firm commitment" Underwritten Offering in which all Stockholders were given
"piggyback" rights pursuant to Section 2.2 (subject to Section 2.1(g)) and at
least 50% of the number of Registrable Securities requested by such Stockholders
to be included in such Demand Registration were included, (B) within six months
of any other Demand Registration or (C) if, in the Company's reasonable
judgment, it is not feasible for the Company to proceed with the Demand
Registration because of the unavailability of audited financial statements. In
addition, the Company shall be entitled to postpone (upon written notice to all
Stockholders) for up to 120 days the filing or the effectiveness of a
registration statement for any Demand Registration (but no more than twice in
any period of 12 consecutive months) if the Board determines in good faith and
in its reasonable judgment that the filing or effectiveness of the registration
statement relating to such Demand Registration would cause the disclosure of
material, non-public information that the Company has a bona fide business
purpose for preserving as confidential. In the event of a postponement by the
Company of the filing or effectiveness of a registration statement for a Demand
Registration, the holders of a majority of Registrable Securities held by the
Requesting Stockholder(s) shall have the right to withdraw such Demand in
accordance with Section 2.4.
(g) Participation in Demand Registrations. The Company shall not
include any securities other than Registrable Securities in a Demand
Registration, except with the written consent of Stockholders participating in
such Demand Registration that hold a majority of the Registrable Securities
included in such Demand Registration. If, in connection with a Demand
Registration, any managing underwriter (or, if such Demand Registration is not
an Underwritten Offering, a nationally recognized
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independent investment bank selected by Fortress and Greenhill or, in each case,
any of its Permitted Transferees (in each case to the extent a Stockholder
hereunder), reasonably acceptable to the Company, and whose fees and expenses
shall be borne solely by the Company) advises the Company, in writing, that, in
its opinion, the inclusion of all of the securities, including securities of the
Company that are not Registrable Securities, sought to be registered in
connection with such Demand Registration would adversely affect the
marketability of the Registrable Securities sought to be sold pursuant thereto,
then the Company shall include in such registration statement only such
securities as the Company is advised by such underwriter can be sold without
such adverse effect as follows and in the following order of priority: (i)
first, up to the number of Registrable Securities requested to be included in
such Demand Registration by the Stockholders, which, in the opinion of the
underwriter can be sold without adversely affecting the marketability of the
offering, pro rata among such Stockholders requesting such Demand Registration
on the basis of the number of such securities requested to be included by such
Stockholders; (ii) second, securities the Company proposes to sell; and (iii)
third, all other securities of the Company duly requested to be included in such
registration statement, pro rata on the basis of the amount of such other
securities requested to be included or such other method determined by the
Company.
(h) Selection of Underwriters. Anytime that a Demand Registration
involves an Underwritten Offering, Fortress and Greenhill or, in each case, any
of its Permitted Transferees (in each case to the extent a Stockholder
hereunder) may select the investment banker or investment bankers and managers
that will serve as lead and co-managing underwriters with respect to the
offering of such Registrable Securities, subject to the consent of the Company,
which shall not be unreasonably withheld.
Section 2.2 Piggyback Registrations.
(a) Right to Piggyback. Subject to the terms and conditions
hereof, whenever the Company proposes to register any of its equity securities
under the Securities Act (other than a registration by the Company on a
registration statement on Form S-4 or a registration statement on Form S-8 or
any successor forms thereto) (a "Piggyback Registration"), whether for its own
account or for the account of others, the Company shall give the Stockholders
prompt written notice thereof (but not less than ten business days prior to the
filing by the Company with the Commission of any registration statement with
respect thereto). Such notice (a "Piggyback Notice") shall specify, at a
minimum, the number of equity securities proposed to be registered, the proposed
date of filing of such registration statement with the Commission, the proposed
means of distribution, the proposed managing underwriter or underwriters (if any
and if known) and a good faith estimate by the Company of the proposed minimum
offering price of such equity securities. Upon the written request of any
Persons that on the date of the Piggyback Notice constitute a Stockholder (a
"Piggyback Seller") (which written request shall specify the number of
Registrable Securities then presently intended to be disposed of by such
Piggyback Seller) given within ten days after such Piggyback Notice is received
by such Piggyback Seller, the Company, subject to the terms and conditions of
this Agreement, shall use its reasonable best efforts to cause all such
Registrable Securities held by Piggyback Sellers with respect to which the
Company has received
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such written requests for inclusion to be included in such Piggyback
Registration on the same terms and conditions as the Company's equity securities
being sold in such Piggyback Registration.
(b) Priority on Piggyback Registrations. If, in connection with a
Piggyback Registration, any managing underwriter (or, if such Piggyback
Registration is not an Underwritten Offering, a nationally recognized
independent investment bank selected by Fortress and Greenhill or, in each case,
any of its Permitted Transferees (in each case to the extent a Stockholder
hereunder), reasonably acceptable to the Company, and whose fees and expenses
shall be borne solely by the Company) advises the Company in writing that, in
its opinion, the inclusion of all the equity securities sought to be included in
such Piggyback Registration by (i) the Company, (ii) others who have sought to
have equity securities of the Company registered in such Piggyback Registration
pursuant to rights to demand (other than pursuant to so-called "piggyback" or
other incidental or participation registration rights) such registration (such
Persons being "Other Demanding Sellers"), (iii) the Piggyback Sellers and (iv)
any other proposed sellers of equity securities of the Company (such Persons
being "Other Proposed Sellers"), as the case may be, would adversely affect the
marketability of the equity securities sought to be sold pursuant thereto, then
the Company shall include in the registration statement applicable to such
Piggyback Registration only such equity securities as the Company is so advised
by such underwriter can be sold without such an effect, as follows and in the
following order of priority:
(i) if the Piggyback Registration relates to an offering for
the Company's own account, then (A) first, such number of equity securities to
be sold by the Company as the Company, in its reasonable judgment and acting in
good faith and in accordance with sound financial practice, shall have
determined, (B) second, Registrable Securities of Piggyback Sellers, pro rata on
the basis of the amount of such Registrable Securities held by such Piggyback
Sellers and (C) third, other equity securities held by any Other Proposed
Sellers;
(ii) if the Piggyback Registration relates to an offering
other than for the Company's own account, then (A) first, such number of equity
securities sought to be registered by each Other Demanding Seller, pro rata in
proportion to the number of securities sought to be registered by all such Other
Demanding Sellers, (B) second, Registrable Securities of Piggyback Sellers pro
rata on the basis of the amount of such Registrable Securities held by such
Piggyback Sellers and (C) third, other equity securities held by any Other
Proposed Sellers or to be sold by the Company as determined by the Company.
(c) Terms of Underwriting. In connection with any Underwritten
Offering under this Section 2.2 for the Company's account, the Company shall not
be required to include a holder's Registrable Securities in the Underwritten
Offering unless such holder accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company; provided, that
any such underwriting agreement includes only customary terms and conditions.
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(d) Withdrawal by the Company. If, at any time after giving
written notice of its intention to register any of its equity securities as set
forth in this Section 2.2 and prior to the time the registration statement filed
in connection with such Piggyback Registration is declared effective, the
Company shall determine for any reason not to register such equity securities,
the Company may, at its election, give written notice of such determination to
each Stockholder and thereupon shall be relieved of its obligation to register
any Registrable Securities in connection with such particular withdrawn or
abandoned Piggyback Registration (but not from its obligation to pay the
Registration Expenses in connection therewith as provided herein); provided,
that Stockholders may continue the registration as a Demand Registration
pursuant to the terms of Section 2.1.
Section 2.3 Shelf Registration.
(a) Subject to Section 2.3(d), and further subject to the
availability of a Registration Statement on Form S-3 ("Form S-3") to the
Company, each of Fortress, Greenhill and ▇▇▇▇▇▇ or any of their respective
Permitted Transferees (in each case to the extent a Stockholder hereunder) may
by written notice delivered to the Company (the "Shelf Notice") require the
Company to file as soon as practicable (but no later than 60 days after the date
the Shelf Notice is delivered), and to use commercially reasonable efforts to
cause to be declared effective by the Commission (within 90 days after such
filing date), a Form S-3 providing for an offering to be made on a continuous
basis pursuant to Rule 415 under the Securities Act relating to the offer and
sale, from time to time, of the Registrable Securities owned by Fortress or
Greenhill (or any of their Permitted Transferees), as the case may be, and any
other Persons that at the time of the Shelf Notice meet the definition of a
Stockholder who elect to participate therein as provided in Section 2.3(b) in
accordance with the plan and method of distribution set forth in the prospectus
included in such Form S-3 (the "Shelf Registration Statement").
(b) Within five business days after receipt of a Shelf Notice
pursuant to Section 2.3(a), the Company will deliver written notice thereof to
each Stockholder. Each Stockholder may elect to participate in the Shelf
Registration Statement by delivering to the Company a written request to so
participate within ten days after the Shelf Notice is received by any such
Stockholder.
(c) Subject to Section 2.3(d), the Company will use commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective until the earlier of (i) one year after the Shelf Registration
Statement has been declared effective; and (ii) the date on which all
Registrable Securities covered by the Shelf Registration Statement have been
sold thereunder in accordance with the plan and method of distribution disclosed
in the prospectus included in the Shelf Registration Statement, or otherwise.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the Company shall be entitled, from time to time, by providing
written notice to the Stockholders who elected to participate in the Shelf
Registration Statement, to require such Stockholders to suspend the use of the
prospectus for sales of Registrable
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Securities under the Shelf Registration Statement for a reasonable period of
time not to exceed 60 days in succession or 90 days in the aggregate in any 12
month period (a "Suspension Period") if the Company shall determine that it is
required to disclose in the Shelf Registration Statement a financing,
acquisition, corporate reorganization or other similar corporate transaction or
other material event or circumstance affecting the Company or its securities,
and that the disclosure of such information at such time would be detrimental to
the Company or its stockholders. Immediately upon receipt of such notice, the
Stockholders covered by the Shelf Registration Statement shall suspend the use
of the prospectus until the requisite changes to the prospectus have been made
as required below. Any Suspension Period shall terminate at such time as the
public disclosure of such information is made. After the expiration of any
Suspension Period and without any further request from a Stockholder, the
Company shall as promptly as reasonably practicable prepare a post-effective
amendment or supplement to the Shelf Registration Statement or the prospectus,
or any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to purchasers of the Registrable
Securities included therein, the prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Section 2.4 Withdrawal Rights. Any Stockholder having notified or
directed the Company to include any or all of its Registrable Securities in a
registration statement under the Securities Act shall have the right to withdraw
any such notice or direction with respect to any or all of the Registrable
Securities designated by it for registration by giving written notice to such
effect to the Company prior to the effective date of such registration
statement. In the event of any such withdrawal, the Company shall not include
such Registrable Securities in the applicable registration and such Registrable
Securities shall continue to be Registrable Securities for all purposes of this
Agreement. No such withdrawal shall affect the obligations of the Company with
respect to the Registrable Securities not so withdrawn; provided, however, that
in the case of a Demand Registration, if such withdrawal shall reduce the number
of Registrable Securities sought to be included in such registration below the
Registrable Amount, then the Company shall as promptly as practicable give each
holder of Registrable Securities sought to be registered notice to such effect
and, within ten days following the mailing of such notice, such holder of
Registrable Securities still seeking registration shall, by written notice to
the Company, elect to register additional Registrable Securities, when taken
together with elections to register Registrable Securities by its Affiliates, to
satisfy the Registrable Amount or elect that such registration statement not be
filed or, if theretofore filed, be withdrawn. During such ten day period, the
Company shall not file such registration statement if not theretofore filed or,
if such registration statement has been theretofore filed, the Company shall not
seek, and shall use commercially reasonable efforts to prevent, the
effectiveness thereof. Any registration statement withdrawn or not filed (a) in
accordance with an election by the Company, (b) in accordance with an election
by the Requesting Stockholders in the case of a Demand Registration or by
Fortress or Greenhill or their respective Permitted Transferees (in each case to
the extent a Stockholder hereunder) with respect to a Shelf Registration
Statement or (c) in accordance with an election by the Company subsequent to the
effectiveness of
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the applicable Demand Registration statement because any post-effective
amendment or supplement to the applicable Demand Registration statement contains
information regarding the Company which the Company deems adverse to the
Company, shall not be counted as a Demand.
Section 2.5 Holdback Agreements. Each Stockholder agrees not to effect
any public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such equity securities, during the ten day period prior to and
the 120 day period following the date on which the Company has notified
Stockholders that it, or in the case of a Demand Registration, the Requesting
Stockholders, intend to commence a Public Offering, Demand Registration or
Piggyback Registration (in each case, except as part of such registration), or,
in each case, a later date required by any underwriting agreement with respect
thereto.
Section 2.6 Registration Procedures.
(a) Registration. If and whenever the Company is required to use
commercially reasonable efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1, 2.2 and 2.3 the
Company shall as expeditiously as reasonably possible:
(i) prepare and file with the Commission a registration
statement to effect such registration and thereafter use commercially reasonable
efforts to cause such registration statement to become and remain effective
pursuant to the terms of this Agreement; provided, however, that the Company may
discontinue any registration of its securities which are not Registrable
Securities at any time prior to the effective date of the registration statement
relating thereto; provided, further that before filing such registration
statement or any amendments thereto, the Company will furnish to the counsel
selected by the holders of Registrable Securities which are to be included in
such registration ("Selling Holders") copies of all such documents proposed to
be filed, which documents will be subject to the review of such counsel, and
such review to be conducted with reasonable promptness;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until the
earlier of such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement or (i) in the case of a Demand
Registration pursuant to Section 2.1, the expiration of 60 days after such
registration statement becomes effective or (ii) in the case of a Piggyback
Registration pursuant to Section 2.2, the expiration of 60 days after such
registration statement becomes effective or (iii) in the case of a Shelf
Registration pursuant to Section 2.3, the expiration of one year after such
registration statement becomes effective;
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(iii) furnish to each Selling Holder and each underwriter, if
any, of the securities being sold by such Selling Holder such number of
conformed copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as such Selling
Holder and underwriter, if any, may reasonably request in order to facilitate
the public sale or other disposition of the Registrable Securities owned by such
seller;
(iv) use commercially reasonable efforts to register or
qualify such Registrable Securities covered by such registration statement under
such other securities laws or blue sky laws of such jurisdictions as any Selling
Holder and any underwriter of the securities being sold by such Selling Holder
shall reasonably request, and take any other action which may be reasonably
necessary or advisable to enable such Selling Holder and underwriter to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Selling Holder, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of this clause
(iv) be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to file a general consent to service of process in any such
jurisdiction;
(v) use commercially reasonable efforts to cause such
Registrable Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and, if no such securities are
so listed, use commercially reasonable efforts to cause such Registrable
Securities to be listed on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the Selling Holder(s) thereof to consummate the disposition
of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for
each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Selling Holder and underwriters, and
(2) a "comfort" letter (or, in the case of any such
Person which does not satisfy the conditions for receipt of a "comfort"
letter specified in Statement on Auditing Standards No. 72, an "agreed
upon procedures" letter) signed by the independent public
11
accountants who have certified the Company's financial statements
included in such registration statement;
(viii) promptly notify in writing each Selling Holder and the
underwriters, if any, of the following events:
(1) the filing of the registration statement, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement, and, with
respect to the registration statement or any post-effective amendment
thereto, when the same has become effective;
(2) any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information;
(3) the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose; and
(4) the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(ix) notify each Selling Holder, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and, at the request of any Selling Holder, promptly prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(x) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make available to
Selling Holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning with the first day of the Company's first full quarter after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
12
(xii) use its reasonable best efforts to assist Stockholders who
made a request to the Company to provide for a third party "market maker" for
the Common Stock; provided, however, that the Company shall not be required to
serve as such "market maker"; and
(xiii) have appropriate officers of the Company prepare and make
presentations at any "road shows" and before analysts and rating agencies, as
the case may be, take other actions to obtain ratings for any Registrable
Securities (if they are eligible to be rated) and otherwise use its reasonable
best efforts to cooperate as reasonably requested by the underwriters in the
offering, marketing or selling of the Registrable Securities.
The Company may require each Selling Holder and each underwriter, if
any, to furnish the Company in writing such information regarding each Selling
Holder or underwriter and the distribution of such Registrable Securities as the
Company may from time to time reasonably request to complete or amend the
information required by such registration statement.
(b) Underwriting. Without limiting any of the foregoing, in the
event that the offering of Registrable Securities is to be made by or through an
underwriter, the Company shall enter into an underwriting agreement with a
managing underwriter or underwriters containing representations, warranties,
indemnities and agreements customarily included (but not inconsistent with the
covenants and agreements of the Company contained herein) by an issuer of common
stock in underwriting agreements with respect to offerings of common stock for
the account of, or on behalf of, such issuers. In connection with any offering
of Registrable Securities registered pursuant to this Agreement, the Company
shall (i) furnish to the underwriter, if any (or, if no underwriter, the sellers
of such Registrable Securities), unlegended certificates representing ownership
of the Registrable Securities being sold, in such denominations as requested and
(ii) instruct any transfer agent and registrar of the Registrable Securities to
release any stop transfer order with respect thereto.
(c) Return of Prospectuses. Each Selling Holder agrees that upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 2.6(a)(ix), such Selling Holder shall forthwith discontinue
such Selling Holder's disposition of Registrable Securities pursuant to the
applicable registration statement and prospectus relating thereto until such
Selling Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.6(a)(ix) and, if so directed by the Company, deliver
to the Company, at the Company's expense, all copies, other than permanent file
copies, then in such Selling Holder's possession of the prospectus current at
the time of receipt of such notice relating to such Registrable Securities. In
the event the Company shall give such notice, any applicable 60 day or one year
period during which such registration statement must remain effective pursuant
to this Agreement shall be extended by the number of days during the period from
the date of giving of a notice regarding the happening of an event of the kind
described in Section 2.6(a)(ix) to the date when all such Selling Holders shall
receive
13
such a supplemented or amended prospectus and such prospectus shall have been
filed with the Commission.
Section 2.7 Registration Expenses. All expenses incident to the
Company's performance of, or compliance with, its obligations under this
Agreement including, without limitation, all registration and filing fees, all
fees and expenses of compliance with securities and "blue sky" laws, all
printing and copying expenses, all messenger and delivery expenses, all fees and
expenses of the Company's independent certified public accountants and counsel
(including, without limitation, with respect to "comfort" letters and opinions)
(collectively, the "Registration Expenses") shall be borne by the Company. The
Company will pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties, the expense of any annual audit and the expense of any
liability insurance) and the expenses and fees for listing the securities to be
registered on each securities exchange and included in each established
over-the-counter market on which similar securities issued by the Company are
then listed or traded. Each Selling Holder shall pay its portion of all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale of such Selling Holder's Registrable Securities pursuant to any
registration.
Section 2.8 Indemnification.
(a) By the Company. The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law, each Selling Holder, its
officers, directors, employees, managers, partners and agents and each Person
who controls (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act) such Selling Holder or such other indemnified Person
from and against all losses, claims, damages, liabilities and expenses
(including reasonable expenses of investigation and reasonable attorneys' fees
and expenses) (collectively, the "Losses") caused by, resulting from or relating
to any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission (or alleged
omission) of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as the same are caused by any information
furnished in writing to the Company by such Selling Holder expressly for use
therein or by such Selling Holder's failure to deliver a copy of a current
prospectus or any amendments or supplements thereto (which does not contain any
such material misstatements or omissions) after the Company has furnished such
holder with a sufficient number of copies of the same. In connection with an
Underwritten Offering and without limiting any of the Company's other
obligations under this Agreement, the Company shall also indemnify such
underwriters, their officers, directors, employees and agents and each Person
who controls (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act) such underwriters or such other indemnified Person to
the same extent as provided above with respect to the indemnification (and
exceptions thereto) of the holders of Registrable Securities being sold.
14
(b) By the Selling Holders. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such Selling Holder will furnish to the Company in writing information regarding
such Selling Holder's ownership of Registrable Securities and its intended
method of distribution thereof and, to the extent permitted by law, shall,
severally and not jointly, indemnify the Company, its directors, officers,
employees and agents and each Person who controls (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act) the Company or such
other indemnified Person against all Losses caused by any untrue statement of
material fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission of a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, but only to the extent that such untrue statement or omission is
caused by and contained in such information so furnished in writing by such
Selling Holder expressly for use therein; provided, however, that each Selling
Holder's obligation to indemnify the Company hereunder shall, to the extent more
than one Selling Holder is subject to the same indemnification obligation, be
apportioned between each Selling Holder based upon the net amount received by
each Selling Holder from the sale of Registrable Securities, as compared to the
total net amount received by all of the Selling Holders of Registrable
Securities sold pursuant to such registration statement. Notwithstanding the
foregoing, no Selling Holder shall be liable to the Company for amounts in
excess of the lesser of (i) such apportionment and (ii) the amount received by
such holder in the offering giving rise to such liability.
(c) Notice. Any Person entitled to indemnification hereunder shall
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification; provided, however, the failure to give such
notice shall not release the indemnifying party from its obligation, except to
the extent that the indemnifying party has been materially prejudiced by such
failure to provide such notice on a timely basis.
(d) Defense of Actions. In any case in which any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not (so long as it shall
continue to have the right to defend, contest, litigate and settle the matter in
question in accordance with this paragraph) be liable to such indemnified party
hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, supervision and monitoring (unless (i) such indemnified
party reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to the defenses
available to such indemnifying party or (ii) the indemnifying party shall have
failed within a reasonable period of time to assume such defense and the
indemnified party is or is reasonably likely to be prejudiced by such
15
delay, in either event the indemnified party shall be promptly reimbursed by the
indemnifying party for the expenses incurred in connection with retaining
separate legal counsel). An indemnifying party shall not be liable for any
settlement of an action or claim effected without its consent. The indemnifying
party shall lose its right to defend, contest, litigate and settle a matter if
it shall fail to diligently contest such matter (except to the extent settled in
accordance with the next following sentence). No matter shall be settled by an
indemnifying party without the consent of the indemnified party (which consent
shall not be unreasonably withheld, it being understood that the indemnified
party shall not be deemed to be unreasonable in withholding its consent if the
proposed settlement imposes any obligation on the indemnified party other than
the payment of money).
(e) Survival. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Person and will survive the transfer of
the Registrable Securities and the termination of this Agreement.
(f) Contribution. If recovery is not available under the foregoing
indemnification provisions for any reason or reasons other than as specified
therein, any Person who would otherwise be entitled to indemnification by the
terms thereof shall nevertheless be entitled to contribution with respect to any
Losses with respect to which such Person would be entitled to such
indemnification but for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered the Persons' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and other equitable
considerations appropriate under the circumstances. It is hereby agreed that it
would not necessarily be equitable if the amount of such contribution were
determined by pro rata or per capita allocation. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not found guilty of
such fraudulent misrepresentation. Notwithstanding the foregoing, no Selling
Holder or transferee thereof shall be required to make a contribution in excess
of the net amount received by such holder from its sale of Registrable
Securities in connection with the offering that gave rise to the contribution
obligation.
(g) Not less than five business days before the expected filing
date of each registration statement pursuant to this Agreement, the Company
shall notify each Stockholder who has timely provided the requisite notice
hereunder entitling the Stockholder to register Registrable Securities in such
registration statement of the information, documents and instruments from such
Stockholder that the Company or any underwriter reasonably requests in
connection with such registration statement, including, but not limited to a
questionnaire, custody agreement, power of attorney, lock-up letter and
underwriting agreement (the "Requested Information"). If the Company has not
received, on or before the second day before the expected filing date, the
Requested Information from such Stockholder, the Company may file the
Registration Statement without including Registrable Securities of such
Stockholder. The failure to so include in any registration statement the
Registrable Securities of a Stockholder (with regard to that
16
registration statement) shall not in and of itself result in any liability on
the part of the Company to such Stockholder.
ARTICLE III
MISCELLANEOUS
Section 3.1 Headings. The headings in this Agreement are for
convenience of reference only and shall not control or effect the meaning or
construction of any provisions hereof.
Section 3.2 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, conditions or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred
to herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof, including
the Original Investor Agreement, upon the Effective Date.
Section 3.3 No Inconsistent Agreements. The Company will not hereafter
enter into, and, except for the Original Investor Agreement, is not currently a
party to, any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities by this
Agreement or otherwise conflicts with the provisions hereof.
Section 3.4 Further Actions; Cooperation. Each of the Stockholders
agrees to use its reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable in connection with
the transactions contemplated by this Agreement. Without limiting the generality
of the foregoing, each of the Stockholders (i) acknowledges that the
Stockholders will prepare and file with the Commission filings under the
Exchange Act, including under Section 13(d) of the Exchange Act, relating to
their beneficial ownership of the Common Stock and (ii) agrees to use its
reasonable efforts to assist and cooperate with the other parties in promptly
preparing, reviewing and executing any such filings under the Exchange Act,
including any amendments thereto.
Section 3.5 Termination of Certain Rights. The rights and obligations
hereunder of each Stockholder will terminate with respect to such Stockholder at
such time when it no longer meets the definition of a Stockholder under this
Agreement; provided, however, that the following shall survive the termination
of this Agreement: (i) the provisions of Sections 2.7 and 2.8; (ii) the rights
with respect to the breach of any provision hereof by the Company and (iii) any
registration rights vested or obligations accrued as of the date of termination
of this Agreement to the extent, in the case of registration rights so vested,
if such Stockholder ceases to meet the definition of a Stockholder under this
Agreement subsequent to the vesting of such registration rights as a result of
action taken by the Company.
17
Section 3.6 Rule 144. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder (or, if it is
not required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales in compliance with Rule 144 under the Securities Act),
and it will take such further reasonable action, to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule 144 may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission. Upon the reasonable request of any holder of Registrable Securities,
the Company will deliver to such holder a written statement as to whether it has
complied with such information and filing requirements.
Section 3.7 Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated on
the signature pages of this Agreement or in writing by such party to the other
parties:
If to the Company, to:
Global Signal Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to Fortress, to:
c/o Fortress Investment Group, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy (which shall not constitute notice), to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
18
If to Greenhill, to:
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy (which shall not constitute notice), to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to ▇▇▇▇▇▇, to:
c/o Abrams Capital Partners II, LP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
with a copy (which shall not constitute notice), to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been given or made if and when received (including by overnight courier) by
the parties at the above addresses or sent by electronic transmission, with
confirmation received, to the telecopy numbers specified above (or at such other
address or telecopy number for a party as shall be specified by like notice).
Any notice delivered by any party hereto to any other party hereto shall also be
delivered to each other party hereto simultaneously with delivery to the first
party receiving such notice.
Section 3.8 Applicable Law. The substantive laws of the State of
Delaware shall govern the interpretation, validity and performance of the terms
of this Agreement, without regard to conflicts of law doctrines. THE PARTIES
HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES HEREUNDER.
19
Section 3.9 Severability. The invalidity, illegality or
unenforceability of one or more of the provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement, including any such provisions, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
Section 3.10 Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and permitted assigns of the parties hereto. If any transferee of any
Stockholder shall acquire a Registrable Amount (or an amount of Registrable
Securities which together with the Registrable Securities owned by its
Affiliates that are Stockholders or transferees of Stockholders and, if
applicable, its other Permitted Transferees that are Stockholders or transferees
of Stockholders, constitutes a Registrable Amount), in any manner, the
provisions of this Agreement which are for the benefit of the parties hereto
(other than the Company) shall also be for the benefit of and enforceable by
such transferee, subject to the provisions contained herein. No transfer of
registration rights permitted hereunder shall be binding upon or obligate the
Company unless and until (i) the Company shall have received notice and such
transfer and (ii) such transferee can establish beneficial ownership or
ownership of record of a Registrable Amount (whether individually or together
with its Affiliates that are Stockholders or transferees of Stockholders and, if
applicable, its other Permitted Transferees that are Stockholders or transferees
of Stockholders). The Company may not assign any of its rights or obligations
hereunder without the prior written consent of the Stockholders holding a
majority of the Registrable Securities. Notwithstanding the foregoing, no
successor or assignee of the Company shall have any rights granted under this
Agreement until such Person shall acknowledge its rights and obligations
hereunder by a signed written statement of such Person's acceptance of such
rights and obligations.
Section 3.11 Amendments. This Agreement may not be amended, modified or
supplemented unless such amendment, modification or supplement is in writing and
signed by the Company and Stockholders holding a majority of the Registrable
Securities; provided, that unless such amendment shall have been reasonably
requested by the lead managing underwriter in connection with a registered
Public Offering of the Common Stock, no amendment may adversely affect the
rights of any Stockholder that is not a party to such amendment.
Section 3.12 Waiver. Any waiver (express or implied) of any default or
breach of this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
Section 3.13 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
Section 3.14 SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
DELAWARE AND OF THE
20
UNITED STATES OF AMERICA IN EACH CASE IN NEW CASTLE COUNTY, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH
PARTY BY REGISTERED OR CERTIFIED MAIL TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN
THIS ARTICLE VIII. THE PARITIES HERETO HEREBY IRREVOCABLY WAIVE ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENT, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS.
Section 3.15 Injunctive Relief. The parties hereto acknowledge and
agree that it will be impossible to measure in money the damages that would be
suffered if any party hereto violates any of the terms of this Agreement and
that any such violation will cause an aggrieved party irreparable injury for
which an adequate remedy at law is not available. Therefore, the parties hereto
shall be entitled (in addition to any other remedy to which they may be entitled
in law or in equity) to specific performance or an injunction, restraining order
or other equitable relief from any court of competent jurisdiction, restraining
any party hereto from committing any violations of the provisions of this
Agreement, and none of the parties hereto shall raise the defense that there is
an adequate remedy at law or request that any bond be posted in connection with
seeking such equitable relief.
Section 3.16 Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 3.17 Recapitalizations, Exchanges, Etc. Affecting the shares of
Common Stock; New Issuances. The provisions of this Agreement shall apply, to
the full extent set forth herein with respect to Registrable Securities and to
any and all equity or debt securities of the Company or any successor or assign
of the Company (whether by merger, consolidation, sale of assets, or otherwise)
which may be issued in respect of, in exchange for, or in substitution of, such
Registrable Securities and shall be appropriately adjusted for any stock
dividends, splits, reverse splits, combinations, reclassifications,
recapitalizations, reorganizations and the like occurring after the date hereof.
Section 3.18 Termination. Upon the mutual consent of all of the parties
hereto or at such earlier time as no Investor, Permitted Transferee or Third
Party Transferee meets the definition of a Stockholder under this Agreement, the
terms of this Agreement (except for Sections 2.7, 2.8, 3.6, 3.8 and 3.14 and
this Section 3.18), shall terminate, and be of no further force and effect.
21
Section 3.19 Legends.
(a) In addition to any other legend that may be required, each
certificate for Common Stock issued to any Stockholder shall bear a legend in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT IN COMPLIANCE THEREWITH.
(b) If any shares of Common Stock are registered under the
Securities Act, then the Company, upon the written request of the holder
thereof, shall issue to such holder a new certificate evidencing such shares of
Common Stock without the legend set forth above endorsed thereon.
Section 3.20 Record of Registrable Securities Ownership. In order
to properly give effect to the provisions of this Agreement, the Company shall,
and shall cause any transfer agent to, maintain a record of transfers of
Registrable Securities and shares of Common Stock generally to Permitted
Transferees and Third Party Transferees, so that the Company is able to identify
the Stockholders and the number of Registrable Securities, and shares of Common
Stock generally, held of record by each such Stockholder at any time. This
information shall be made available to any Stockholder as promptly as possible
following receipt by the Company of a written request by such Stockholder.
Section 3.21 Effectiveness of Agreement. This Agreement shall
become effective on the day the following conditions are first satisfied (the
"Effective Date"): (a) the execution of a counterpart hereof by each of the
parties hereto and the delivery thereof to all other parties hereto; (b) to the
extent required, receipt by the Company of a writing from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset
Funding Inc., a third party beneficiary of certain provisions of the Original
Investor Agreement, consenting to this Agreement; and (c) a registration
statement filed under the Securities Act with the Commission following the date
of this Agreement in respect of an offering of Common Stock is declared
effective and shares of the Common Stock so registered are issued and sold.
Until the Effective Date, the Original Investor Agreement shall remain in full
force and effect.
[Remainder of page left blank intentionally]
22
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly as of the
date first above written.
COMPANY:
GLOBAL SIGNAL INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
President
INVESTORS:
FORTRESS PINNACLE ACQUISITION LLC
By: FRIT PINN LLC, a Delaware limited
liability company, Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Secretary
GREENHILL CAPITAL PARTNERS, L.P.
By: GCP, L.P., its General Partner
By: Greenhill Capital Partners, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
[AMENDED AND RESTATED INVESTOR AGREEMENT OF GLOBAL SIGNAL INC. SIGNATURE PAGE]
GREENHILL CAPITAL PARTNERS (CAYMAN), L.P.
By: GCP, L.P., its General Partner
By: Greenhill Capital Partners, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
GREENHILL CAPITAL PARTNERS
(EXECUTIVES), L.P.
By: GCP, L.P., its General Partner
By: Greenhill Capital Partners, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
GREENHILL CAPITAL, L.P.
By: GCP, L.P., its General Partner
By: Greenhill Capital Partners, LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
▇▇▇▇▇▇ CAPITAL PARTNERS I, L.P.
By: ▇▇▇▇▇▇ Capital, LLC, its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
Managing Member
[AMENDED AND RESTATED INVESTOR AGREEMENT OF GLOBAL SIGNAL INC. SIGNATURE PAGE]
▇▇▇▇▇▇ CAPITAL PARTNERS II, L.P.
By: ▇▇▇▇▇▇ Capital, LLC, its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
Managing Member
WHITECREST PARTNERS, L.P.
By: ▇▇▇▇▇▇ Capital, LLC, its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Managing Member
GREAT HOLLOW INTERNATIONAL, L.P.
By: Great Hollow Partners, LLC, its
General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
Managing Member
222 PARTNERS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member