Exhibit 1.1
INVESTMENT AGREEMENT
by and among
GLOBAL SIGNAL INC.
and
THE INVESTORS NAMED ON THE SIGNATURE PAGE HEREIN
Dated as of
February 14, 2005
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
ARTICLE II
PURCHASE AND SALE OF SHARES
Section 2.1 Notice of Commitment Amount......................................5
Section 2.2 Issuance and Sale................................................5
Section 2.3 The Purchase Price...............................................6
Section 2.4 Repurchase Option................................................6
Section 2.5 Default by One or More of the Investors..........................6
Section 2.6 Investor Agreement...............................................6
ARTICLE III
THE CLOSING
Section 3.1 The Closing......................................................7
Section 3.2 Deliveries.......................................................7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.1 Organization; Subsidiaries.......................................7
Section 4.2 Due Authorization................................................8
Section 4.3 Capitalization...................................................9
Section 4.4 SEC Reports......................................................10
Section 4.5 Financial Statements.............................................10
Section 4.6 Litigation.......................................................10
Section 4.7 Consents and Approvals...........................................11
Section 4.8 Compliance with Laws.............................................12
Section 4.9 Financial Advisory, Legal and Other Fees.........................12
Section 4.10 Board of Directors..............................................12
Section 4.11 Information Statement...........................................12
Section 4.12 Taxes 13
Section 4.13 REIT Qualification..............................................13
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Section 5.1 Investment.......................................................13
Section 5.2 Rule 144.........................................................14
Section 5.3 Organization; Etc................................................14
Section 5.4 Authority........................................................14
Section 5.5 Non-Contravention................................................14
Section 5.6 Consents and Approvals...........................................15
Section 5.7 Brokers and Finders..............................................15
Section 5.8 Sufficient Funds.................................................15
Section 5.9 Information Supplied.............................................15
ARTICLE VI
COVENANTS
Section 6.1 Conduct of the Business Pending the Closing......................16
Section 6.2 Information Statement............................................17
Section 6.3 Listing Obligation...............................................17
Section 6.4 Cooperation......................................................18
Section 6.5 Notification of Certain Matters..................................18
Section 6.6 Consent; Approvals...............................................18
Section 6.7 Further Assurances...............................................18
Section 6.8 Use of Proceeds..................................................18
Section 6.9 Waiver of Piggyback Registration Rights For Shelf Registratin....19
Section 6.10 Exception to Ownership Limits...................................19
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to Obligations of the Investors and the Company.......19
Section 7.2 Conditions to Obligations of the Investors.......................19
Section 7.3 Conditions to Obligations of the Company.........................20
ARTICLE VIII
TERMINATION
Section 8.1 Termination......................................................21
ARTICLE IX
INDEMNIFICATION
Section 9.1 Survival of Representations and Warranties.......................22
Section 9.2 Indemnification..................................................22
Section 9.3 Procedure for Indemnification....................................24
Section 9.4 Sole Remedy......................................................26
ARTICLE X
MISCELLANEOUS
Section 10.1 Governing Law...................................................26
Section 10.2 Jurisdiction; Forum; Service of Process; Waiver of Jury Trial...26
Section 10.3 Successors and Assigns..........................................26
Section 10.4 Fees and Expenses...............................................27
Section 10.5 Entire Agreement; Amendment.....................................27
Section 10.6 Notices.........................................................27
Section 10.7 Delays or Omissions.............................................29
Section 10.8 Counterparts....................................................29
Section 10.9 Severability....................................................29
Section 10.10 Titles and Subtitles...........................................29
Section 10.11 No Public Announcement.........................................29
THIS INVESTMENT AGREEMENT is made and entered into as of
February 14, 2005 (the "Agreement"), by and among (a) Global Signal Inc., a
Delaware corporation (the "Company"); (b) Fortress Investment Fund II LLC, a
Delaware limited liability company ("Fortress"); (c) Xxxxxx Capital Partners
II, L.P., a Delaware limited partnership, Xxxxxx Capital Partners I, L.P., a
Delaware limited partnership, Whitecrest Partners, L.P., a Delaware limited
partnership, Xxxxxx Capital International, LTD, a Cayman Island limited
liability company and Riva Capital Partners, L.P., a Delaware limited
partnership (collectively, "Xxxxxx"); and (d) Xxxxxxxxx Capital Partners,
L.P., a Delaware limited partnership, Xxxxxxxxx Capital Partners (Executive),
L.P., a Delaware limited partnership, Greenhill Capital, L.P., a Delaware
limited partnership, Xxxxxxxxx Capital Partners (Cayman), L.P., a Cayman
Islands limited partnership, Xxxxxxxxx Capital Partners (Employees) II, L.P.,
a Delaware limited partnership (collectively, "Greenhill", and together with
Fortress and Xxxxxx, the "Investors", and each individually, an "Investor").
Capitalized terms used in this Agreement but not otherwise defined herein
shall have the meanings ascribed to such terms in Article I. References herein
to sections shall be to sections of this Agreement, and references herein to
this Agreement shall include each of the Exhibits and Schedules attached
hereto.
WHEREAS, the Company has entered into an Agreement to
Contribute, Lease and Sublease, dated the date hereof, with Sprint Corporation
and the Sprint Corporation subsidiaries named therein (the "Contribution
Agreement"), whereby the Company will lease or otherwise operate certain
communication towers and enter into the related transactions contemplated
thereby (collectively, the "Transaction");
WHEREAS, in connection with the Transaction, the Investors
desire to subscribe for and purchase, and the Company desires to sell to the
Investors, upon the terms and subject to the conditions set forth herein,
shares of the Company's common stock, par value $0.01 per share (the "Common
Stock");
WHEREAS, at the Closing, the Investors and the Company
desire to enter into an option agreement, the form of which is attached hereto
as Exhibit A (the "Option Agreement"), pursuant to which the Company shall
have the right and option (but not the obligation) to purchase a portion of
the shares of the Company's Common Stock issued to the Investors pursuant to
this Agreement.
WHEREAS, the Company has obtained the Written Consent of
Stockholders In Lieu of a Special Meeting attached hereto as Exhibit B for the
issuance of the Shares (as defined below) (the "Stockholder Approval"); and
WHEREAS, each Investor is a Stockholder (as such term is
defined in the Amended and Restated Investor Agreement dated as of March 31,
2004 among Global Signal Inc., Fortress Pinnacle Acquisition LLC, Xxxxxxxxx
Capital Partners, L.P. and its related partnerships named therein, Xxxxxx
Capital Partners II, L.P. and certain of its related partnerships named
therein, and other parties named therein (the "Investor Agreement")) and the
Shares issued pursuant to this Agreement are Registrable Securities (as such
term is defined in the Investor Agreement) and as such the Company and the
Investors are subject to the rights, privileges and obligations of the
Investor Agreement with respect to the Shares issued pursuant to this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
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As used herein, the following terms shall have the meanings
set forth below:
Xxxxxx Representative means Xxxxx Xxxxxx.
Affiliate shall have the meaning ascribed to such term in
Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended.
Affiliates of any Investor shall be deemed to include limited partners in, and
other direct or indirect owners of such Investor, together with entities
owned, controlled or managed by any or all of such Persons.
Closing has the meaning ascribed thereto in Section 3.1.
Closing Date means the date on which the Closing occurs.
Code means the Internal Revenue Code of 1986, as amended.
Contribution Agreement has the meaning ascribed thereto in
the second whereas clause above.
Commitment Amount means up to $500,000,000; provided,
however, that such amount shall be reduced by (i) an amount equal to the net
proceeds received by the Company pursuant to any public or private offering of
equity securities of the Company that is consummated on or before the Closing
Date ("Offering Reduction") and (ii) an amount equal to any borrowings
outstanding under any credit facility or similar agreements provided in
connection with the Transaction in excess of $750,000,000 on the Closing Date;
provided, further, that in no event shall the Commitment Amount be less than
$250,000,000.
Encumbrance means, with respect to any Person, any mortgage,
pledge, charge, claim, option, proxy, voting trust, security interest or other
encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title
retention agreement or capital lease, upon or with respect to any property or
asset of such Person (including in the case of stock, stockholder agreements,
voting trust agreements and all similar arrangements).
Fortress Representative means Xxxxxx X. Xxxxxxx and Xxxxxxxx
Xxxxxx.
Governmental Entity means any supernational, national,
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority.
Greenhill Representative means Xxxxxx X. Xxxxxxx.
Indemnified Person has the meaning ascribed to it in Section
9.2(b).
Indemnifying Party has the meaning ascribed to it in Section
9.3(a).
Indemnitee has the meaning ascribed to it in Section 9.3(a).
Information Statement has the meaning ascribed to it in
Section 6.2.
Investor Indemnified Person has the meaning ascribed to it
in Section 9.2(a).
Knowledge of a party hereto means the actual knowledge of
any executive officer after due inquiry.
Laws means all foreign, federal, state, and local laws,
statutes, ordinances, rules, regulations, orders, judgments, decrees and
bodies of law.
Lien means with respect to any asset or right, any mortgage,
deed of trust, lien (statutory or other), pledge, hypothecation, assignment,
claim, charge, security interest, conditional sale agreement, title,
exception, or Encumbrance, option, right of first offer or refusal, easement,
servitude, voting or transfer restriction, or any other right of another to or
adverse claim or any kind in respect of such asset or right.
Losses means each and all of the following items: claims,
losses, liabilities, obligations, payments, damages (actual or punitive),
charges, judgments, fines, penalties, amounts paid in settlement, costs and
expenses (including, without limitation, interest which may be imposed in
connection therewith, costs and expenses of investigation, actions, suits,
proceedings, demands, assessments and fees, expenses and disbursements of
counsel, consultants and other experts).
Material Adverse Effect means any event which has had, has
or would reasonably be expected to have a material adverse effect on the
financial condition, results of operations or business of the Company and its
Subsidiaries, taken as a whole, other than (i) as a result of changes in
general economic or industry conditions or changes in applicable Laws, rules
or regulations or (ii) as a result of changes arising out of the announcement
of the transactions contemplated by this Agreement or the Contribution
Agreement.
Option Per Share Price means $26.50.
Per Share Price means $25.50.
Person means any individual, firm, corporation, limited
liability company, partnership, company, trust or other entity, and shall
include any successor (by merger or otherwise) of such entity.
Purchase Price for each Investor means the Per Share Price
multiplied by the aggregate number of Shares purchased by such Investor
pursuant to this Agreement.
Repurchase Amount means the difference between the
Commitment Amount set forth in the Commitment Amount Notice and $250,000,000.
Repurchase Shares means that number of shares of Common
Stock equal to the quotient of the Repurchase Amount divided by the Option Per
Share Price, such number to be rounded upwards to the nearest whole number.
SEC means the United States Securities and Exchange
Commission and any successor Governmental Entity.
Securities Act means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act shall include reference to the
comparable section, if any, of such successor federal statute.
Shares means that number of shares of Common Stock equal to
the quotient of the Commitment Amount divided by the Per Share Price, such
number to be rounded upwards to the nearest whole number.
Sites means the physical locations of the Towers.
Investor Agreement means the Amended and Restated Investor
Agreement dated as of March 31, 2004 among Global Signal Inc., Fortress
Pinnacle Acquisition LLC, Xxxxxxxxx Capital Partners, L.P. and its related
partnerships named therein, Xxxxxx Capital Partners II, L.P. and certain of
its related partnerships named therein, and other parties named therein.
Subsidiary means as to any Person, each corporation,
partnership or other entity of which shares of capital stock or other equity
interests having ordinary voting power (other than capital stock or other
equity interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers
of such corporation, partnership or other entity are at the time owned,
directly or indirectly, or the management of which is otherwise controlled,
directly or indirectly, or both, by such Person.
Transaction has the meaning ascribed to it in the second
whereas clause above.
Transaction Agreements means the Contribution Agreement and
the Master Lease and Sublease by and among the Company and certain Sprint
Corporation subsidiaries.
Towers means the communications towers owned, leased or
managed by the Company, including the attached guy wires located at the
Company's Sites.
ARTICLE II
PURCHASE AND SALE OF SHARES
---------------------------
Section 2.1 Notice of Commitment Amount. The Company shall
deliver to the Investors a notice setting forth the Commitment Amount at least
10 business days prior to the Closing (the "Commitment Amount Notice")
provided, however, that, the Company shall be entitled until the Closing Date
to amend the Commitment Amount Notice to reduce the Commitment Amount.
Section 2.2 Issuance and Sale. Upon the terms and conditions
set forth herein, at the Closing, the Company shall issue and sell to each
Investor and each Investor shall purchase from the Company that number of
shares of Common Stock equal to the product of the Shares multiplied by the
percentage set forth opposite such Investor's name on Exhibit C hereto.
Notwithstanding anything to the foregoing set forth herein, each Investor
shall have the right to assign its right to purchase Shares to one or more of
its affiliates (as defined in Rule 12b-2 of the Securities Exchange Act of
1934) but any such transfer of assignment shall not relieve such Investor of
its obligations hereunder.
Section 2.3 The Purchase Price. Each of the Investors shall
pay to the Company, by wire transfer of immediately available funds, the
Purchase Price in consideration for the Shares purchased by such Investor
pursuant to this Agreement.
Section 2.4 Repurchase Option. Upon the terms and conditions
set forth herein, at the Closing, the Investors and the Company shall enter
into the Option Agreement, pursuant to which each Investor shall issue to the
Company a one-time right and option (but not the obligation) to purchase for
cash (the "Repurchase Option") from such Investor that number of shares of
Common Stock issued to such Investor hereunder equal to the product of the
Repurchase Shares multiplied by the percentage set forth opposite such
Investor's name on Exhibit C hereto, at a price per share equal to the Option
Per Share Price, provided, however, the Company shall not be entitled to a
Repurchase Option and no Option Agreement shall be executed at the Closing, if
an Offering Reduction occurs prior to the Closing. Such Repurchase Option
shall be available for a period commencing on the Closing Date and concluding
one day following the six month anniversary of the Closing Date.
Section 2.5 Default by One or More of the Investors. If on
or prior to the Closing Date any one or more of the Investors shall fail or
refuse to purchase the Shares that it has agreed to purchase hereunder, the
remaining Investors shall each have the right but not the obligation to
purchase such Shares of the breaching Investor by delivery of a written notice
to the Company; provided, however, that if the number of Shares of the
breaching Investor which the non-breaching Investors desire to purchase
pursuant to this Section 2.5 exceeds the total number of Shares which were to
be purchased by the breaching Investor, then each non-breaching Investor shall
be entitled to purchase pro rata a portion of the total number of the Shares
which were to be purchased by the breaching Investor and to the extent a
non-breaching Investor elects not to purchase its pro rata share the remaining
Investor shall have the right to purchase any remaining Shares of the
breaching Investor.
Section 2.6 Investor Agreement. The Company acknowledges and
agrees with each of the Investors that upon the Closing Date, each of the
Investors shall be deemed to be a "Stockholder" as such term is defined in the
Investor Agreement and that any Shares purchased by an Investor pursuant to
this Agreement shall be deemed to be "Registrable Securities" for the purpose
of the Investor Agreement provided however, upon written request of any
Investor the Company and each of the other Investors agrees to execute an
amendment to the Investor Agreement pursuant to which an Investor to this
Agreement may be added as a party thereto.
ARTICLE III
THE CLOSING
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Section 3.1 The Closing. Subject to the satisfaction or
waiver of the conditions contained in Article VII, the closing (the "Closing")
of the purchase and sale of the Shares and the issuance of the Repurchase
Option will take place at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 4 Times Square, New York, New York at the same time as the closing of the
Transaction.
Section 3.2 Deliveries(a) . Subject to the satisfaction or
waiver of each of the conditions hereof, at the Closing, the Company shall
deliver to each Investor against payment of such Investor's portion of the
Purchase Price: (i) one certificate representing the appropriate number of
Shares registered in the name of such Investor; (ii) each of the certificates,
instruments and agreements required to be delivered by the Company pursuant to
Article VII; (iii) the executed Option Agreement; and (iv) such other
documents as the Investor may reasonably request in connection with the
Closing.
(b) Subject to the satisfaction or waiver of each of the
conditions hereof, at the Closing, each Investor shall deliver to the Company:
(i) payment of the Purchase Price, by wire transfer of immediately available
funds to an account or accounts designated by the Company prior to the
Closing, for the Shares to be purchased by the Investor; (ii) each of the
certificates, instruments and agreements required to be delivered by each of
the Investor's pursuant to Article VII; (iii) the executed Option Agreement
and (iv) such other documents as the Company may reasonably request in
connection with the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to each of the
Investors that all of the statements contained in this Article IV are true and
correct as of the date hereof and the Closing Date.
Section 4.1 Organization; Subsidiaries.
(a) The Company is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware and has
the requisite corporate power and corporate authority to carry on its business
as it is now being conducted or presently proposed to be conducted. To the
Company's Knowledge, the Company is duly qualified and licensed as a foreign
corporation to do business and is in good standing (and has paid all relevant
franchise or analogous taxes) in each jurisdiction where the character of its
assets owned or held under lease or the nature of its business makes such
qualification necessary, except where the failure to be so qualified or
licensed, individually or in the aggregate, has not had and would not
reasonably be expected to have a Material Adverse Effect.
(b) The Company owns, either directly or indirectly through
one or more of its Subsidiaries, all of the capital stock or other equity
interests of its Subsidiaries free and clear of all Liens, except those Liens
pursuant to the credit and other loan agreements existing as of the date
hereof. There are no outstanding subscription rights, options, warrants,
convertible or exchangeable securities or other rights of any character
whatsoever relating to issued or unissued capital stock or other equity
interests of any Subsidiary, or any commitments of any character whatsoever
relating to issued or unissued capital stock or other equity interests of any
Subsidiary or pursuant to which any Subsidiary is or may become bound to issue
or grant additional shares of its capital stock or other equity interests or
related subscription rights, options, warrants, convertible or exchangeable
securities or other rights, or to grant preemptive rights.
(c) Each Subsidiary is a corporation, limited liability
company, partnership, business association or other Person duly organized,
validly existing and in good standing (in jurisdictions where such concept is
recognized) under the Laws of the jurisdiction of its organization and has the
requisite corporate power and authority to carry on its business as it is now
being conducted. To the Company's Knowledge, each Subsidiary of the Company is
duly qualified and licensed as a foreign corporation or other business entity
to do business and is in good standing (and has paid all relevant franchise or
analogous taxes) in each jurisdiction where the character of its assets owned
or held under lease or the nature of its business makes such qualification
necessary, except where the failure of one or more Subsidiaries to be so
qualified or licensed, individually or in the aggregate, has not had and would
not be reasonably expected to have a Material Adverse Effect.
Section 4.2 Due Authorization.
(a) The Company has all corporate right, power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The (a) execution and delivery by the Company of this Agreement, (b)
issuance, sale and delivery of the Shares by the Company and (c) compliance by
the Company with each of the provisions of this Agreement (i) are within the
corporate power and authority of the Company and (ii) have been duly
authorized by all requisite corporate action of the Company. This Agreement
has been duly and validly executed and delivered by the Company, and (assuming
this Agreement constitutes a valid and binding obligation of the Investors)
this Agreement constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
as such enforcement is limited by bankruptcy, insolvency, reorganization,
moratorium and other similar Laws affecting the enforcement of creditors'
rights generally and limitations imposed by general principles of equity.
(b) The Shares have been duly authorized by the Company and,
when issued, sold and delivered in accordance with this Agreement, the Shares
will be validly issued, fully paid and nonassessable, free and clear of all
Liens, and the issuance thereof will not be subject to any preemptive rights,
right of first refusal or similar right. At the Closing, no further approval
or authority of the stockholders or the Board of Directors under the Delaware
General Corporation Law (the "DGCL"), the rules of the New York Stock Exchange
(the "NYSE") or the consent of any other party will be required for the
issuance of the Shares, other than the approval of the NYSE of the listing of
such shares of Common Stock on the NYSE. No preemptive rights or other rights
to subscribe for or purchase securities exist with respect to the issuance and
sale of the Shares.
Section 4.3 Capitalization.
(a) The authorized capital stock of the Company consists of
(i) 150,000,000 shares of Common Stock and (ii) 20,000,000 shares of preferred
stock, par value $.01 per share ("Preferred Stock"). As of the date hereof,
there are 52,142,205 shares of Common Stock and no shares of Preferred Stock
issued and outstanding. All of the issued and outstanding shares of Common
Stock have been duly authorized and are validly issued, fully paid and
nonassessable and not subject to preemptive or other similar rights of the
stockholders of the Company.
(b) Except as set forth in this Agreement or as described in
the SEC Reports filed prior to the date hereof, there are no outstanding
subscription rights, options, warrants, convertible or exchangeable securities
or other rights of any character whatsoever to which the Company is a party
relating to issued or unissued capital stock of the Company, or any
commitments of any character whatsoever relating to issued or unissued capital
stock of the Company or pursuant to which the Company or any of the
Subsidiaries are or may become bound to issue or grant additional shares of
their capital stock or related subscription rights, options, warrants,
convertible or exchangeable securities or other rights, or to grant preemptive
rights. Except as set forth in the SEC Reports filed prior to the date hereof
and except as contemplated by this Agreement, including Section 6.1, (a) the
Company has not agreed to register any securities under the Securities Act or
under any state securities law or granted registration rights to any Person
and (b) there are no voting trusts, stockholders agreements, proxies or other
commitments or understandings in effect to which the Company is a party with
respect to the voting or transfer of any of the outstanding shares of Common
Stock.
Section 4.4 SEC Reports. The Company has timely filed all
annual reports, quarterly reports, proxy statements and other reports required
to be filed by it with the SEC under the Exchange Act since June 3, 2004
(together with the Company's Registration Statement on Form S-11 (file no.
333-112839) filed with the SEC on June 2, 2003, the "SEC Reports"). Each SEC
Report was, on the date of its filing or as subsequently amended prior to the
date hereof, in compliance in all material respects with the requirements of
its respective report form and applicable Laws and did not, on the date of
filing or as subsequently amended, contain any 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, in the light of the circumstances
under which they were made, not misleading.
Section 4.5 Financial Statements. Except as set forth on the
disclosure letter of even date herewith, the consolidated financial statements
of the Company (including any related schedules and/or notes) included in the
SEC Reports, as subsequently amended prior to the date hereof, comply in all
material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, and have been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") consistently followed throughout the periods involved
(except as may be indicated in the notes thereto) and fairly present in
accordance with GAAP the consolidated financial condition, results of
operations, cash flows and changes in stockholders' equity of the Company and
the Subsidiaries as of the respective dates thereof and for the respective
periods then ended (in each case subject, as to interim statements, to the
absence of footnotes and as permitted by Form 10-Q and subject to changes
resulting from year-end adjustments). Except as disclosed in the SEC Reports
filed prior to the date hereof, neither the Company nor any Subsidiary has any
liability or obligation (whether accrued, absolute, contingent, unliquidated
or otherwise, whether known or unknown, whether due or to become due and
regardless of when asserted), except for (i) liabilities and obligations
reflected or disclosed in the audited consolidated balance sheet of the
Company and its Subsidiaries as of December 31, 2003, or the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of September
30, 2004, or the footnotes thereto, (ii) liabilities and obligations incurred
in the ordinary course of business since September 30, 2004, or (iii)
liabilities and obligations which, individually or in the aggregate, have not
had and would not reasonably be expected to have or result in a Material
Adverse Effect.
Section 4.6 Litigation.
(a) Except as disclosed in the SEC Reports filed prior to
the date hereof, there is no claim, action, suit, investigation or proceeding
of any kind or nature whatsoever ("Litigation") pending or, to the Knowledge
of the Company, threatened against the Company or any of the Subsidiaries or
involving any of their respective properties or assets by or before any court,
arbitrator or other Governmental Entity that (x) in any manner challenges or
seeks to prevent, enjoin, alter or delay the transactions contemplated by this
Agreement or (y) if resolved adversely to the Company or a Subsidiary would
have or would reasonably be expected to have a Material Adverse Effect. Except
as disclosed in such SEC Reports, there is no judgment, decree, injunction,
rule, or order of any court, governmental department, commission, agency,
instrumentality or arbitrator outstanding against the Company or any of the
Subsidiaries which has or would reasonably be expected to have a Material
Adverse Effect.
(b) To the Knowledge of the Company, neither the Company nor
any of the Subsidiaries is in default under or in breach of any order,
judgment or decree of any court, arbitrator or other Governmental Entity, and
neither the Company nor any of the Subsidiaries is a party or subject to any
order, judgment or decree of any court, arbitrator or other Governmental
Entity, except where such default, breach, order, judgment or decree has not
had or would not reasonably be expected to have a Material Adverse Effect.
Section 4.7 Consents and Approvals. Except as set forth in
the disclosure letter of even date herewith, the execution, delivery or
performance by the Company of this Agreement and the consummation of the
transactions contemplated hereby, do not and will not (i) conflict with, or
result in a breach or a violation of, any provision of the certificate of
incorporation or by-laws or other organizational documents of the Company or
any of its Subsidiaries, (ii) constitute, with or without notice or the
passage of time or both, a breach, violation or default, create an
Encumbrance, or give rise to any right of termination, modification,
cancellation, prepayment, suspension, limitation, revocation or acceleration,
under (A) any applicable Law or (B) any provision of any agreement or other
instrument to which the Company or any of the Subsidiaries is a party or
pursuant to which any of them or any of their assets or properties is subject,
except where such breach, violation or default, creation of an Encumbrance, or
right of termination, modification, cancellation, prepayment, suspension,
limitation, revocation or acceleration, individually or in the aggregate, has
not had and would not reasonably be expected to have a Material Adverse Effect
or (iii) except for (A) the approval of the NYSE of the listing of the Shares
on the NYSE, (B) the filing with the SEC of the Information Statement relating
thereto, (C) any required filing under any foreign governmental and regulatory
filings, notices and approvals required to be made or obtained as contemplated
by Section 6.6, and (D) any filings, consents, approvals or authorizations of,
notifications to, or exemptions or waivers by any Governmental Entity or any
other Person which are not, individually or in the aggregate, material to the
consummation of the transactions contemplated hereby, require any consent,
approval or authorization of, notification to, filing with, or exemption or
waiver by, any Governmental Entity or any other Person on the part of the
Company or any of its Subsidiaries.
Section 4.8 Compliance with Laws. Except as disclosed in the
SEC Reports filed prior to the date hereof and the disclosure letter of even
date herewith, the Company and the Subsidiaries are in compliance with all
Laws in all respects, and neither the Company nor any Subsidiary has received
any notice of any alleged violation of Law, except where a failure to comply
or alleged violation of Law has not had or would not reasonably be expected to
have a Material Adverse Effect. To the Knowledge of the Company, the Company
holds all material licenses, franchise permits, consents, registrations,
certificates, and other governmental or regulatory permits, authorizations or
approvals required for the operation of the business as presently conducted
and for the ownership, lease or operation of the Company's and its
Subsidiaries' Towers and Sites (collectively, "Licenses"). To the Knowledge of
the Company, all of such Licenses are valid and in effect, the Company and the
Subsidiaries have duly performed and are in compliance with all of their
obligations under such Licenses and no investigation or review by any
governmental or regulatory body or authority is pending or threatened, except
where a failure with respect thereto has not had or would not reasonably be
expected to have a Material Adverse Effect.
Section 4.9 Financial Advisory, Legal and Other Fees.. No
agent, broker, accounting firm, investment bank, other financial advisor,
commercial bank, other financial institution, law firm, public relations firm
or any other Person is or will be entitled to any fee, commission, expense or
other amount from the Company or any of the Subsidiaries in connection with
any of the transactions contemplated by this Agreement.
Section 4.10 Board of Directors. The Board of Directors of
the Company, after accepting the recommendation of a Special Committee of the
Board of Directors, has determined that the issuance of the Shares, this
Agreement and the transactions contemplated hereby, are advisable and in the
best interests of the Company and its stockholders.
Section 4.11 Information Statement. The Information
Statement will not, at the date it is first mailed to the Company's
stockholders, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading. The Information Statement will comply as to form in all
material respects with the requirements of the Securities Act and the Exchange
Act and the rules and regulations thereunder, except that no representation or
warranty is made by the Company with respect to information or statements
specifically supplied by or on behalf of any of the Investors for inclusion or
incorporation by reference in the Information Statement.
Section 4.12 Taxes. The Company and its subsidiaries have
filed all necessary federal, state and foreign income and franchise tax
returns and have paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied against
any of them, except, in all cases, for any such amounts that the Company is
contesting in good faith and except in any case in which the failure to so
file or pay would not in the aggregate cause a Material Adverse Effect. Except
as set forth in the disclosure letter of even date herewith, the Company has
made, to the extent required by GAAP, adequate charges, accruals and reserves
in the applicable financial statements referred to in Section 4.5 in respect
of all federal, state and foreign income and franchise taxes for all periods
as to which the tax liability of the Company or any of its subsidiaries has
not been finally determined.
Section 4.13 REIT Qualification. The Company has, since its
inception, been organized and operated, and as of the Closing Date will
continue to be organized and to operate, in a manner so as to qualify as a
"real estate investment trust" under Sections 856 through 860 of the Code.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
-----------------------------------------------
Each Investor as to itself hereby represents and warrants to
the Company that all of the statements contained in this Article V are true
and correct as of the date hereof and the Closing Date.
Section 5.1 Investment.
(a) Such Investor is acquiring the Shares for investment for
its own account, and not with a view to any resale or distribution thereof in
violation of the Securities Act.
(b) Such Investor's financial condition and investments are
such that it is in a position to hold the Shares for an indefinite period,
bear the economic risks of the investment and withstand the complete loss of
the investment. Such Investor has extensive knowledge and experience in
financial and business matters and has the capability to evaluate the merits
and risks of such Shares. Such Investor qualifies as (i) an "accredited
investor" as such term is defined in Section 2(a)(15) of the Securities Act
and Regulation D promulgated thereunder or (ii) a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act.
Section 5.2 Rule 144. Such Investor acknowledges that the
Shares must be held indefinitely unless subsequently registered under the
Securities Act and any applicable state securities laws or unless exemptions
from such registrations are available. Such Investor is aware of and familiar
with the provisions of Rule 144 promulgated under the Securities Act that
permit limited resale of securities purchased in a private placement subject
to the satisfaction of certain conditions.
Section 5.3 Organization; Etc. Such Investor is duly
organized and validly existing and in good standing under the Laws of the
jurisdiction of its organization. To the best of such Investor's knowledge, no
natural person who is an investor in such Investor will have Beneficial
Ownership (as such term is defined in Article 4 Part D of the Company's
Amended and Restated Certificate of Incorporation, as amended) of Common Stock
of the Company that exceeds 9.8%.
Section 5.4 Authority.
(a) Such Investor has all right, power and authority to
execute and deliver this Agreement, to consummate the transactions
contemplated hereby and thereby and to comply with the terms, conditions and
provisions hereof and thereof.
(b) The (i) execution, delivery and performance by such
Investor of this Agreement, (ii) compliance by such Investor with each of the
provisions of this Agreement and (iii) consummation of the transactions
contemplated hereby and thereby (A) are within the power and authority of such
Investor, (B) have been duly authorized and approved by the requisite actions
of such Investor and (C) do not require any further authorization or consent
of such Investor or, if applicable, its beneficial owners. This Agreement has
been duly and validly executed and delivered by such Investor, and (assuming
this Agreement constitutes a valid and binding obligation of the Company) this
Agreement constitutes) a legal, valid and binding agreement of such Investor,
enforceable against such Investor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws from time to time affecting
the enforcement of creditors' rights generally and limitations imposed by
general principles of equity.
Section 5.5 Non-Contravention. The execution, delivery and
performance by such Investor of this Agreement and the consummation of the
transactions contemplated hereby, will not (a) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any Lien, charge or
Encumbrance upon any property or assets of such Investor pursuant to any
agreement, instrument, franchise, license or permit to which such Investor is
a party or by which any of its properties or assets may be bound or (b)
violate or conflict with any Law of any Governmental Entity applicable to such
Investor or any of its properties or assets, other than such breaches,
defaults or violations that are not reasonably expected to impair the ability
of such Investor to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance by such Investor of this
Agreement and the consummation of the transactions contemplated hereby, do not
and will not violate or conflict with any provision of the organizational
documents of such Investor, as currently in effect.
Section 5.6 Consents and Approvals. No consent, approval,
authorization, order, registration, filing, qualification, license or permit
of or with any Governmental Entity applicable to such Investor or of or with
any third party is required for the execution, delivery and performance of
this Agreement and to consummate the transactions contemplated hereby.
Section 5.7 Brokers and Finders. No agent, broker,
investment banker, financial advisor or other firm or person engaged by or on
behalf of such Investor is or will be entitled to any broker's or finder's fee
or any other commission or similar fee in connection with any of the
transactions contemplated by this Agreement.
Section 5.8 Sufficient Funds. Such Investor has available,
or has obtained commitments for, sufficient funds to acquire its portion of
the Shares to be purchase pursuant to this agreement.
Section 5.9 Information Supplied. None of the information
supplied or to be supplied by or on behalf of such Investor in writing
specifically for inclusion or incorporation by reference in the Information
Statement will, at the date it is first mailed to the Company's stockholders,
contain, any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
ARTICLE VI
COVENANTS
---------
Section 6.1 Conduct of the Business Pending the Closing. The
Company covenants and agrees that, during the period from the date of this
Agreement and continuing until the earlier of the termination of this
Agreement or the Closing unless the Investors otherwise consents in writing
(which consent shall not be unreasonably withheld, conditioned or delayed) the
Company shall, and shall cause each of its Subsidiaries to, (i) conduct its
business only in the ordinary course and consistent with past practice; (ii)
use commercially reasonable best efforts to preserve and maintain its assets
and properties and its relationships with its customers, suppliers,
advertisers, distributors, agents, officers and employees and other persons
with which it has significant business relationships; (iii) use its
commercially reasonable best efforts to maintain all of the material assets it
owns or uses in the ordinary course of business consistent with past practice;
(iv) use its commercially reasonable best efforts to preserve the goodwill and
ongoing operations of its business; (v) maintain its books and records in the
usual, regular and ordinary manner, on a basis consistent with past practice;
and (vi) comply in all material respects with applicable Laws. Notwithstanding
the forgoing and except as expressly contemplated by this Agreement or the
Transaction Agreements or as consented to by the Investors in writing (which
consent shall not be unreasonably withheld, conditioned or delayed), during
the period from the date of this Agreement through and including the Closing
Date, the Company shall not, and shall not permit any of its Subsidiaries to:
(a) (i) split, combine or reclassify any of its capital
stock or issue or authorize the issuance of any other securities in respect
of, in lieu of or in substitution for shares of its capital stock, or (ii)
purchase, redeem or otherwise acquire any capital stock in the Company or any
of the Subsidiaries or any other securities thereof or any rights, warrants or
options to acquire any such shares or other securities, except in the ordinary
course of business pursuant to the Company's employee benefit plans;
(b) except as set forth in the disclosure letter of even
date herewith, take any action that is reasonably likely to result in (i) any
of the representations and warranties set forth in Article IV becoming false
or inaccurate in any material respect as of, or at any time prior to, the
Closing Date or (ii) any of the conditions to the obligations of each Investor
set forth in Section 7.2 not being satisfied;
(c) amend the charter, bylaws or other comparable
organizational documents of the Company in a manner likely to adversely affect
any Investor; or
(d) agree to take, any of the foregoing actions.
Notwithstanding anything to the contrary contained in this Agreement, the
Company shall not be prevented from, or obligated to obtain the consent of the
Investors prior to, (i) issuing shares of its capital stock or entering into
agreements with respect thereto, including with respect to registration
rights, or (ii) engaging in any merger, acquisition or business combination
transaction.
Section 6.2 Information Statement. As promptly as
practicable following the date of this Agreement, the Company shall prepare a
form of information statement to be mailed to the stockholders of the Company
relating to the Stockholder Approval (the "Information Statement") (provided
that the Investors shall have the right to consent to any descriptions of or
references to the Investors or any of their Affiliates, which consent shall
not be unreasonably withheld, conditioned or delayed) and use its commercially
reasonable best efforts (x) (1) to respond as promptly as practicable to any
comments made by the SEC with respect to the Information Statement and (2) to
promptly supply the Investors with copies of all correspondence between the
Company or any of its representatives, on the one hand, and the SEC or its
staff, on the other hand, with respect to the Information Statement, and (y)
to cause the Information Statement to be mailed to its stockholders at the
earliest practicable date following the clearance of the Information Statement
by the SEC.
Section 6.3 Listing Obligation. Prior to the Closing, the
Company will take all reasonable steps necessary, and pay all reasonable fees
required, to list the Shares on the NYSE, to the extent required by the NYSE.
Following the initial listing of the Shares, the Company will use its
commercially reasonable best efforts to maintain the listing of the Common
Stock for so long as any Investor owns any Shares.
Section 6.4 Cooperation. Each of the Investors, on the one
hand, and the Company, on the other, agrees to use its commercially reasonable
best efforts to cause, or not to impede, to the extent that such party has
control or influence over such matters, satisfaction of the conditions, set
forth in Sections 7.2 and 7.3, to the other party's obligation to consummate
the transactions contemplated by this Agreement.
Section 6.5 Notification of Certain Matters. From the date
hereof through the Closing, each of the Investors, on the one hand, and the
Company, on the other shall give prompt notice to such other party of the
occurrence, or failure to occur, of any event the occurrence or failure of
which caused any of the Company's or such Investor's representations or
warranties contained in this Agreement to be untrue or inaccurate in any
material respect; provided, however, that no such notification shall be deemed
for any purpose under this Agreement to permit the Company or such Investor to
alter or amend the representations and warranties contained herein.
Section 6.6 Consent; Approvals. The Company shall use its
commercially reasonable efforts to obtain, as promptly as practicable, all
consents, waivers, exemptions, approvals, authorizations or orders
(collectively, "Consents") (including, without limitation (i) all Consents
required to avoid any breach, violation, default, encumbrance or right of
termination, modification, cancellation, prepayment, suspension, limitation,
revocation or acceleration of any material agreement or instrument to which
the Company is a party or its properties or assets are bound, and (ii) all
approvals of Governmental Entities, required in connection with the
consummation of the transactions contemplated by this Agreement as promptly as
practicable, except where the failure to obtain such Consents, individually or
in the aggregate, has not had and would not be reasonably expected to have a
Material Adverse Effect.
Section 6.7 Further Assurances. From time to time after the
date of this Agreement, the parties hereto shall execute, acknowledge and
deliver to the other parties such other instruments, documents, and
certificates and will take such other actions as the other parties may
reasonably request in order to consummate the transactions contemplated by
this Agreement.
Section 6.8 Use of Proceeds. The Company shall apply the
proceeds from the sale of the Shares to the payments required to be made by
the Company pursuant to the Transaction Agreements and associated costs and
expenses.
Section 6.9 Waiver of Piggyback Registration Rights For
Shelf Registration. In the event the Company files a shelf registration
statement prior to the six month anniversary of the execution of this
Agreement, each Investor hereby covenants and agrees to irrevocably and
unconditionally waive all piggyback registration rights and other rights
provided pursuant to Section 2.2 of the Investor Agreement in connection with
such shelf registration statement including, without limitation, the right to
receive any notices from the Company pursuant to Section 2.2 of the Investor
Agreement. Nothing in this Section 6.9 shall be deemed to be a waiver of any
of the Investor's other rights under the Investor Agreement, including the
right of any such Investor to demand registration pursuant to Section 2.1 or
2.3 of the Investor Agreement.
Section 6.10 Exception to Ownership Limits. The Company
shall use its best efforts to and shall exercise all authority under
applicable law, rules and regulations to cause the Board of Directors to take
action pursuant to Section 2.7 of Article 4 Part D of the Company's Amended
and Restated Certificate of Incorporation, as amended, to except each Investor
from the ownership limits to the extent necessary for each such Investor in
order to consummate the issuance of shares pursuant to Article II of this
Agreement.
ARTICLE VII
CONDITIONS PRECEDENT
--------------------
Section 7.1 Conditions to Obligations of the Investors and
the Company. The respective obligations of each of the Investors and the
Company to consummate the transactions contemplated hereby shall be subject to
the satisfaction or waiver at or prior to the Closing of each of the following
conditions:
(a) Laws. No Laws shall be in effect which prohibit the
consummation of the transactions contemplated hereby.
(b) Consummation of Transaction. The Closing shall be
consummated simultaneously with the closing of the Transaction.
Section 7.2 Conditions to Obligations of the Investors. The
obligation of each of the Investors to consummate the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing of each of the following conditions:
(a) Performance of Obligations. The Company shall have
performed, satisfied and complied with, in all material respects, all
covenants and agreements set forth in this Agreement required to be performed
by it under this Agreement at or prior to the Closing.
(b) Officer's Certificate. The Company shall have delivered
to such Investor a certificate signed by its president, dated the Closing
Date, in form and substance reasonably satisfactory to such Investor, to the
effect that the conditions set forth in Sections 7.2(a) have been satisfied.
(c) Receipts of Consents. The Company shall have obtained
the Consents contemplated by Section 6.6,, if any, and a copy of each such
consent or evidence thereof reasonably satisfactory to such Investor shall
have been provided to such Investor at or prior to the Closing, unless the
failure to obtain such Consents, when taken together with other events,
developments or circumstances, has had or would reasonably be expected to have
a Material Adverse Effect.
Section 7.3 Conditions to Obligations of the Company. The
obligation of the Company to consummate the transactions with each Investor
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing of each of the following conditions:
(a) Representations and Warranties. All of the
representations and warranties of such Investor set forth in this Agreement
shall be true and correct in all material respects, in each case as of the
date of this Agreement and as of the Closing Date, as if made at and as of
such time, except to the extent expressly made as of an earlier date, in which
case as of such date.
(b) Performance of Obligations. Such Investor shall have
performed, satisfied and complied with, in all material respects, all
covenants and agreements set forth in this Agreement required to be performed
by it under this Agreement at or prior to the Closing.
(c) Investor Certificates. Such Investor shall have
delivered to the Company a certificate signed by an authorized signatory
thereof, dated the Closing Date, in form and substance reasonably satisfactory
to the Company, to the effect that the conditions set forth in Sections 7.3(a)
and 7.3(b) have been satisfied.
ARTICLE VIII
TERMINATION
-----------
Section 8.1 Termination. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned at any time prior to
the Closing Date notwithstanding the fact that any requisite authorization and
approval of the transactions contemplated hereby shall have been received and
no party hereto shall have any liability to any other party hereto (provided
that any such termination shall not (i) relieve any party from liability for a
breach of any provision hereof prior to such termination or (ii) terminate the
parties' respective obligations under Article IX or Section 10.04); provided,
however, that in the event this Agreement is terminated in accordance with
this Section 8.1, no Investor Indemnified Person may seek indemnification from
the Company pursuant to Article IX hereof other than for the reasonable
out-of-pocket fees, costs or expenses incurred by such Investor Indemnified
Person in connection with the Transactions):
(a) by the Investors or the Company if the Contribution
Agreement is terminated in accordance with its terms;
(b) by the Investors or the Company if there shall be any
Law that makes consummation of the purchase of the Shares hereunder illegal or
otherwise prohibited or if any court of competent jurisdiction or governmental
authority shall have issued an order, decree, ruling or taken any other action
restraining, enjoining or otherwise prohibiting the purchase of the Shares
hereunder and such order, decree, ruling or other action shall have become
final and non-appealable;
(c) by the Investors or the Company if the Closing shall not
have occurred within 180 days of the date of this Agreement.
(d) by the Company with respect to any particular Investor
if such Investor shall have breached in any respect any of its
representations, warranties, covenants or other agreements contained in this
Agreement that would give rise to the failure of a condition set forth in
Article VII; or
(e) by the Investors if the Company shall have breached in
any respect any of its covenants or other agreements contained in this
Agreement that would give rise to the failure of a condition set forth in
Article VII.
ARTICLE IX
INDEMNIFICATION
---------------
Section 9.1 Survival of Representations and Warranties. The
representations and warranties of the parties hereto contained in this
Agreement shall expire twelve months after the Closing Date, except that the
representations and warranties set forth in Sections 4.1(a), 4.2, 4.3, 5.1,
5.2, 5.3 and 5.4 shall survive until 6 months after the expiration of the
applicable statute of limitations (including any extensions thereof). After
the expiration of such periods, any claim by a party hereto based upon any
such representation or warranty shall be of no further force and effect,
except to the extent a party has asserted a claim in accordance with this
Article IX for breach of any such representation or warranty prior to the
expiration of such period, in which event any representation or warranty to
which such claim relates shall survive with respect to such claim until such
claim is resolved as provided in this Article IX. The covenants and agreements
of the parties hereto contained in this Agreement shall survive the Closing
until performed in accordance with their terms.
Section 9.2 Indemnification.
(a) The Company shall indemnify, defend and hold harmless
the Investors, their Affiliates, and their respective officers, directors,
partners, members, employees, agents, representatives, successors and assigns
(each an "Investor Indemnified Person") from and against all Losses incurred
or suffered by a Investor Indemnified Person arising from, relating to or as a
result of (i) the breach of any of the representations or warranties made by
the Company in this Agreement or in any certificate furnished by the Company
to the Investor pursuant to this Agreement (which breach shall be determined
without regard to any materiality or Material Adverse Effect qualifications
contained in the representation and warranty giving rise to such claim for
indemnity), (ii) the breach of any covenant, obligation or agreement made by
the Company in this Agreement or (iii) any actual or threatened Litigation
against such Investor Indemnified Person by any Person (other than an Investor
Indemnified Person) in connection with (A) the transactions contemplated
hereby, (B) the negotiation, execution, delivery and performance of this
Agreement or (C) any actions taken by any Investor Indemnified Person pursuant
hereto or thereto or in connection with the transactions contemplated hereby
(whether or not the transactions contemplated hereby are consummated);
provided, however, that the Company shall not have any obligation to indemnify
a particular Investor Indemnified Person pursuant to this Section 9.2(a)(iii)
to the extent such suit, action, claim or proceeding arises from a breach of
this Agreement by such Investor or such Investor Indemnified Person or a
failure of any representation or warranty of such Investor set forth in
Article V hereof to be true and correct and such breach or failure of a
representation or warranty to be true and correct results in any condition
contained in Sections 7.1 or 7.3 hereof being incapable of being satisfied
prior to the Closing.
(b) Each Investor shall severally and not jointly indemnify,
defend and hold harmless (i) the Company, its Affiliates, and their respective
officers, directors, partners, members, employees, agents, representatives,
successors and assigns and (ii) each other Investor and its Affiliates, and
their respective officers, directors, partners, members, employees, agents,
representatives, successors and assigns (each an "Indemnified Person") from
and against all Losses incurred or suffered by an Indemnified Person arising
from, relating to, or as a result of (i) the breach of any of the
representations or warranties made by such Investor in this Agreement or any
certificate furnished by such Investor to the Company pursuant to this
Agreement or (ii) the breach of any covenant, obligation or agreement made by
such Investor in this Agreement.
(c) No claim may be made against the Company for
indemnification with respect to breaches of representations and warranties
pursuant to Section 9.2(a)(i) above with respect to any Losses unless the
aggregate amount of Losses incurred by the Investor Indemnified Persons
thereunder exceeds $10,000,000, and the Company shall then only be liable for
the amount of such Losses which exceed $10,000,000. The maximum amount
recoverable under Section 9.2(a)(i) by all Investor Indemnified Persons, in
the aggregate, shall be the Purchase Price and the maximum amount recoverable
under Section 9.2(a)(i) by an Investor and its Investor Indemnified Persons
shall not exceed such Investor's Purchase Price. No claim may be made against
an Investor for indemnification with respect to breaches of representations
and warranties pursuant to Section 9.2(b)(i) above with respect to any Losses
unless the aggregate amount of Losses incurred by the Indemnified Persons
thereunder exceeds $10,000,000, and such Investor shall then only be liable
for the amount of such Losses which exceed $10,000,000. With respect to each
Investor, the maximum amount recoverable under Section 9.2(b)(i) by all
Indemnified Persons from such Investor shall be equal to the Purchase Price of
the Shares such Investor is required to purchase pursuant to Section 2.2,
provided however, if such Investor shall have purchased a number of Shares
larger than the number of Shares such Investor was required to purchase
pursuant to Section 2.2, the maximum amount recoverable under Section
9.2(b)(i) by all Indemnified Persons from such Investor shall be equal to the
Purchase Price of the Shares such Investor purchased pursuant to this
Agreement.
(d) In no case shall any payment be made in the case of an
indemnification claim under Section 9.2(a)(i) or 9.2(a)(ii) until a Loss
occurs. No Person shall have any liability to any Investor Indemnified Person
under Section 9.2(a)(i) for any breach of a representation or warranty to the
extent that a claim for indemnification is based upon facts of which such
Investor Indemnified Person had knowledge on or prior to the Closing Date,
unless such claim also relies upon a materially adverse occurrence or
development that occurs after the Closing Date. For purposes of this Section
9.2(d), (i) the Investors shall be deemed to have knowledge of a fact only if
any of the Persons set forth in the definition of " Fortress Representative"
or "Greenhill Representative" or "Xxxxxx Representative" has knowledge of the
particular fact and (ii) such individual shall be deemed to have knowledge
only to the extent of his or her actual knowledge of such fact and only to the
extent of his or her awareness that such fact constitutes a breach of such
representation or warranty.
Section 9.3 Procedure for Indemnification.
(a) If an Investor Indemnified Person or an Indemnified
Person (such Person being referred to as the "Indemnitee") shall receive
notice or otherwise learn of the assertion by a Person who is not a party to
this Agreement of any claim or of the commencement by any such Person of any
action (a "Claim") with respect to which the other party (the "Indemnifying
Party") may be obligated to provide indemnification, such Indemnitee shall
give such Indemnifying Party written notice thereof promptly after becoming
aware of such Claim; provided, that the failure of any Indemnitee to give
notice as provided in this Section 9.3 shall not relieve the applicable
Indemnifying Party of its obligations under this Article IX, except to the
extent that such Indemnifying Party is materially prejudiced by such failure
to give notice; provided, further, that the applicable Indemnifying Party
shall have no obligations under Section 9.2(a)(i) or Section 9.2(b)(i), as
applicable, unless such written notice is received by the Indemnifying Party
within the survival periods set forth in Section 9.1. Such notice shall
describe the Claim in reasonable detail, and shall indicate the amount
(estimated if necessary) of the Loss that has been or may be sustained by or
is claimed against such Indemnitee.
(b) An Indemnifying Party may elect to compromise, settle or
defend, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Claim; provided, however, that the Indemnifying Party
shall not compromise, settle or defend a Claim without the consent of the
Indemnitee (which consent shall not be unreasonably withheld, conditioned or
delayed). If an Indemnifying Party elects to compromise, settle or defend a
Claim, it shall, within 30 days of the receipt of notice from an Indemnitee
pursuant to Section 9.3(a) (or sooner, if the nature of such Claim so
requires), notify the applicable Indemnitee of its intent to do so, and such
Indemnitee shall cooperate in a commercially reasonable manner in the
compromise or settlement of, or defense against, such Claim. After notice from
an Indemnifying Party to an Indemnitee of its election to assume the defense
of a Claim, the Indemnitee shall have the right to participate in the defense
thereof, at its own expense, and such Indemnifying Party shall not be liable
to such Indemnitee under this Article IX for any legal or other expenses
subsequently incurred by such Indemnitee in connection with the defense
thereof (except expenses approved in advance by the Indemnitee); provided,
that such Indemnitee shall have the right to employ one separate counsel
reasonably satisfactory to the Indemnifying Party to represent such Indemnitee
if (i) in the reasonable judgment of the Indemnitee, there are legal defenses
available to such Indemnitee that are different from or additional to those
available to the Indemnifying Party, (ii) the Indemnifying Party shall
authorize in writing the Indemnitee to retain a single, separate counsel at
the Indemnifying Party's expense or (iii) the defendants in any such Claim
include both the Indemnifying Party and the Indemnitee and, in such
Indemnitee's reasonable judgment, a conflict of interest between such
Indemnitee and such Indemnifying Party exists in respect of such Claim, and
only in the events listed in clauses (i) through (iii) of this paragraph (b)
shall the reasonable fees and expenses of such separate counsel be paid by
such Indemnifying Party. If an Indemnifying Party elects not to compromise,
settle or defend against a Claim, or fails to notify an Indemnitee of its
election as provided in this Section 9.3 within 30 days of notice from the
Indemnitee pursuant to Section 9.3(a), such Indemnitee may compromise, settle
or defend such Claim at the expense of such Indemnifying Party.
(c) If an Indemnifying Party chooses to defend any claim,
the applicable Indemnitee shall make available to such Indemnifying Party any
personnel or any books, records or other documents within its control that are
reasonably necessary or appropriate for such defense.
(d) If the aggregate amount of any Loss shall, at any time
subsequent to payment pursuant to this Agreement, be reduced by recovery,
settlement or otherwise, the amount of such reduction, net of any expenses
incurred in connection therewith or additional Losses incurred, shall promptly
be repaid by the applicable Indemnitee to the applicable Indemnifying Party.
(e) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any events
or circumstances in respect of which such Indemnitee may have any right or
claim relating to such Claim. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and, at the cost and expense of
such Indemnifying Party, in prosecuting any subrogated right or claim.
Section 9.4 Sole Remedy. Except in the case of fraud, the
rights to indemnification provided for in this Article IX for a breach of
representations or warranties by the Investors (in the case of indemnification
pursuant to Section 9.2(b)(i)) or the Company (in the case of indemnification
pursuant to Section 9.2(a)(i)) shall constitute the sole post-closing remedy
of the Company and the Investors respectively, for such breach, and the
Company and the Investors shall have no other liability or damages to the
other party resulting from any such breach.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the internal and substantive Laws of the
State of New York without giving effect to conflicts of law principles
thereof.
Section 10.2 Jurisdiction; Forum; Service of Process; Waiver
of Jury Trial. With respect to any suit, action or proceeding ("Proceeding")
arising out of or relating to this Agreement, the Company and each of the
Investors hereby irrevocably:
(a) submits to the exclusive jurisdiction of the courts of
the United States of America located in the State of New York and the courts
of the State of New York (the "Selected Courts"), for any Proceeding arising
out of or relating to this Agreement and the transactions contemplated hereby
(and agrees not to commence any Litigation relating hereto except in such
Selected Courts) and waives any objection to venue being laid in the Selected
Courts whether based on the grounds of forum non conveniens or otherwise;
(b) consents to service of process in any Proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, or
by recognized international express carrier or delivery service, to the
Company or the Investors at their respective addresses referred to in Section
10.6; provided, however, that nothing herein shall affect the right of any
party hereto to serve process in any other manner permitted by Law; and
(c) waives, to the fullest extent permitted by Law, any
right it may have to a trial by jury in any Proceeding directly or indirectly
arising out of, under or in connection with this Agreement.
Section 10.3 Successors and Assigns. Except as otherwise
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors by operation of Law and permitted assigns of the
parties hereto. Except as permitted under Section 2.1, no assignment of this
Agreement may be made by any party at any time, whether or not by operation of
Law, without the other parties' prior written consent. Only the parties to
this Agreement or their permitted assigns shall have rights under this
Agreement.
Section 10.4 Fees and Expenses. Except as otherwise provided
herein, all fees, costs or expenses shall be paid by the party incurring such
fees, costs or expenses. All legal fees and expenses of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP will be paid by the Company.
Section 10.5 Entire Agreement; Amendment. This Agreement
constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof and supercedes all prior agreements
relating to the subject matter hereof. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the Company and by
each of the Investors. No waiver of any of the provisions of this Agreement
shall be deemed to or shall constitute a waiver of any other provision hereof
(whether or not similar). No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
Section 10.6 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 facsimile,
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 in writing by such party to the other parties:
if to the Company to:
Global Signal Inc.
000 Xxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Coco
if to Fortress to:
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
if to Xxxxxx to:
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax: 000-000-0000
if to Greenhill to:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
All such notices, requests, consents and other
communications shall be deemed to have been given or made if and when
delivered personally or by overnight courier to the parties at the above
addresses or sent by electronic transmission, with confirmation received, to
the facsimile numbers specified above (or at such other address or facsimile
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 10.7 Delays or Omissions. Except as expressly
provided herein, no delay or omission to exercise any right, power or remedy
accruing to the Company or the Investors upon any breach or default of any
party under this Agreement, shall impair any such right, power or remedy of
the Company or the Investors nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval
of any kind or character on the part of the Company or the Investors of any
breach or default under this Agreement, or any waiver on the part of any such
party of any provisions or conditions of this Agreement, must be in writing
and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by Law or otherwise
afforded to the Company or the Investors shall be cumulative and not
alternative, except as set forth Section 9.4.
Section 10.8 Counterparts. This Agreement may be executed in
any number of counterparts, each of which may be executed by only one of the
parties hereto, each of which shall be enforceable against the party actually
executing such counterpart, and all of which together shall constitute one
instrument.
Section 10.9 Severability. In the event that any provision
of this Agreement becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, this Agreement shall continue in full
force and effect without said provisions; provided that, no such severability
shall be effective if it materially changes the economic benefit of this
Agreement to any party.
Section 10.10 Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
Section 10.11 No Public Announcement(a) . None of the
Company or its Subsidiaries or the Investors or their Affiliates shall make
any press release, public announcement or filing with any Governmental Entity
concerning the transactions contemplated by this Agreement, except as and to
the extent that any such party shall be obligated to make any such disclosure
by this Agreement, by Law or the rules of any national securities exchange.
Signature pages follow
Global Signal Inc. Investment Agreement Signature Page
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed as of the date first above written.
GLOBAL SIGNAL INC.
By:_________________________________
Name:
Title:
FORTRESS INVESTMENT FUND II LLC
By:_________________________________
Name:
Title:
XXXXXX CAPITAL PARTNERS II, L.P.
By:_________________________________
Name:
Title:
XXXXXX CAPITAL PARTNERS I, L.P.
By:_________________________________
Name:
Title:
WHITECREST PARTNERS, L.P.
By:_________________________________
Name:
Title:
XXXXXX CAPITAL INTERNATIONAL, LTD
By:_________________________________
Name:
Title:
RIVA CAPITAL PARTNERS, L.P.
By:_________________________________
Name:
Title:
GREENHILL CAPITAL PARTNERS, X.X.
XXXXXXXXX CAPITAL PARTNERS
(CAYMAN), X.X
XXXXXXXXX CAPITAL PARTNERS
(EXECUTIVES), X.X.
XXXXXXXXX CAPITAL, L.P.
By: GCP Managing Partner, L.P., as
managing general partner of
each of the foregoing
partnerships
By: Greenhill Capital Partners, LLC,
its general partner
By:_________________________________
Name:
Title:
GREENHILL CAPITAL PARTNERS
(EMPLOYEES) II, L.P.
By: GCP Managing Partner II, L.P., as
managing General partner
By: Greenhill Capital Partners, LLC,
its general partner
By:_________________________________
Name:
Title:
EXHIBIT A
FORM OF OPTION AGREEMENT
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (this "Agreement"), is entered
into this th day of , 2005 (the "Date of Grant") by and among (a) Global
Signal Inc., a Delaware corporation (the "Company"), (b) Fortress Investment
Fund II LLC, a Delaware limited liability company ("Fortress"), (c) Xxxxxx
Capital Partners II, L.P., a Delaware limited partnership, Xxxxxx Capital
Partners I, L.P., a Delaware limited partnership, Whitecrest Partners, L.P., a
Delaware limited partnership, Xxxxxx Capital International, LTD, a Cayman
Island limited liability company and Riva Capital Partners, L.P., a Delaware
limited partnership (collectively, "Xxxxxx"); and (d) Xxxxxxxxx Capital
Partners, L.P., a Delaware limited partnership, Xxxxxxxxx Capital Partners
(Executive), L.P., a Delaware limited partnership, Greenhill Capital, L.P., a
Delaware limited partnership, Xxxxxxxxx Capital Partners (Cayman), L.P., a
Cayman Islands limited partnership, Xxxxxxxxx Capital Partners (Employees) II,
L.P., a Delaware limited partnership (collectively, "Greenhill", and together
with Fortress and Xxxxxx, the "Investors", and each individually, an
"Investor").
This Agreement is a one-time stock option (an "Option") to
repurchase shares of the Company's common stock. This Option is granted for
the purpose of permitting the Company to repurchase a portion of the shares of
the Company's common stock, par value $0.01 per share (the "Common Stock")
issued to the Investors pursuant to an Investment Agreement, dated February
14, 2005, by and among the Company and the Investors.
Terms and Conditions of the Option
1. Number of Shares and Option Price. The Option entitles
the Company to purchase from the Investors an aggregate of shares (the "Option
Shares") of the Company's Common Stock, at an exercise price of $26.50 per
share (the "Option Price") subject to adjustment as set forth herein. The
Company shall purchase from each Investor that number of Option Shares equal
to the product of the Option Shares multiplied by the percentage set forth
opposite such Investor's name on Exhibit A hereto.
2. Period of Option. This Option may be exercised as
provided herein at any time from and after the Date of Grant until 5:00 p.m.,
New York City time, on the date that is six months and one day after the Date
of Grant or if such date is not a business day on the next succeeding business
day (the "Expiration Date"). Upon the occurrence of the Expiration Date, all
rights of the Company hereunder, with respect to the Option, shall cease.
3. Conditions of Exercise. Subject to the provisions of this
Agreement, the Option shall be fully vested and immediately exercisable in
accordance with Section 4 below.
4. Exercise of Option. The Option may be exercised one-time,
as provided herein, in whole or in part, at any time until the Expiration Date
in the manner described in this Section 4. In the case of exercise, the
Company shall deliver to the Investors written notice specifying the number of
Option Shares to be acquired pursuant to such exercise, together with cash in
an amount equal to the aggregate Option Price. The Company shall also deliver
to the Investors a certificate from a duly authorized officer of the Company
to the effect that the covenants, representations and warrants set forth in
Section 6(b) hereof are true and correct in all material respects with the
same force and effect as though expressly made at the time of this Agreement.
Upon the Investor's receipt of the Company's written notice of exercise and
the cash, the Investors shall promptly deliver to the Company the number of
Option Shares set forth in such notice.
5. Nontransferability of Option. Except as permitted by each
Investor in writing or a corporate successor of such Investor by merger,
consolidation or otherwise, the Company shall not be permitted to sell,
transfer, pledge or assign the Option. The Option shall be exercisable only by
the Company or any subsequent party or parties having the right to exercise
the Option pursuant to the foregoing sentence. Any attempted assignment,
transfer, pledge or other disposition of the Option contrary to the provisions
hereof shall be null and void and without effect.
6. Covenants, Representations and Warranties.
(a) Covenants, Representations and Warranties of Investors.
Each Investor hereby covenants, represents and warrants to the Company as
follows:
(i) Such Investor has full power and authority to
execute, deliver and perform its obligations under this Agreement and this
Agreement is a valid and binding obligation of such Investor, enforceable in
accordance with its terms.
(ii) The execution, delivery and performance by such
Investor of this Agreement requires no action by or in respect of, or filing
with, any governmental body, agency or official and do not and will not (i)
violate the certificate of incorporation or bylaws of such Investor, (ii)
violate any law, rule, regulation, judgment, injunction, order or decree
applicable to such Investor or (iii) require any consent or other action by
any person, constitute a default, or give rise to termination, cancellation or
acceleration of any right or obligation of such Investor under any provision
of any agreement or other instrument binding upon such Investor.
(iii) The Investors have or will have available for
delivery upon exercise or exchange of this Option the total number of shares
of Common Stock issuable upon exercise of this Option. All shares of Common
Stock deliverable upon exercise will be delivered free and clear of all liens
and encumbrances.
(b) Covenants, Representations and Warranties of the
Company. The Company hereby covenants, represents and warrants to each
Investor as follows:
(i) The Company has full power and authority to
execute, deliver and perform its obligations under this Agreement and this
Agreement is a valid and binding obligation of the Company, enforceable in
accordance with its terms.
(ii) The execution, delivery and performance by the
Company of this Agreement requires no action by or in respect of, or filing
with, any governmental body, agency or official and do not and will not (i)
violate the certificate of incorporation or bylaws of the Company, (ii)
violate any law, rule, regulation, judgment, injunction, order or decree
applicable to the Company or (iii) require any consent or other action by any
person, constitute a default, or give rise to termination, cancellation or
acceleration of any right or obligation of the Company under any provision of
any agreement or other instrument binding upon the Company.
7. Notices. Any notice required or permitted under this
Agreement shall be deemed given when delivered personally, or when deposited
in a United States Post Office, postage prepaid, addressed, as appropriate, to
the each Investor either at its address set forth below or such other address
as it may designate in writing to the Company, or to the Company: 000 Xxxxx
Xxxxxxxxx Xxxx, xxxxx 000, Xxxxxxxx, Xxxxxxx, 00000, Attention: Xxxxx Xxxxx,
President (or his designee), at the Company's address or such other address as
the Company may designate in writing to each Investor.
8. Failure to Enforce Not a Waiver. The failure of the
Company or the Investors to enforce at any time any provision of this
Agreement shall in no way be construed to be a waiver of such provision or of
any other provision hereof.
9. Governing Law. This Agreement shall be governed by and
construed according to the laws of the State of New York without regard to its
principles of conflict of laws.
10. Adjustments.
(a) In the event of any change in the share of Common Stock
by reason of stock dividends, splits, mergers, recapitalizations,
combinations, subdivisions, conversions, exchanges of shares or other similar
transactions, then that which is then transferable upon exercise of the Option
shall be appropriately adjusted so that the Company shall receive, upon
exercise of the Option and payment of the Option Price, the number and class
of shares of Common Stock or other securities or property (including cash)
that the Company would have owned or been entitled to receive after the
happening of any of the events described above if the Option had been
exercised immediately prior to such event.
(b) Whenever the number of Option Shares are
adjusted pursuant to Section 10(a) herein, the Option Price shall be
appropriately adjusted, if applicable, by multiplying the Option Price by a
fraction, the numerator of which shall be equal to the aggregate number of
Option Shares transferred under the Option prior to the adjustment and the
denominator of which shall be equal to the aggregate number of Option Shares
transferred under the Option immediately after the adjustment.
11. Amendments. This Agreement may be amended or
modified at any time by an instrument in writing signed by the parties hereto.
12. Securities Laws Requirements. The Option shall
not be exercisable to any extent, and the Investors shall not be obligated to
transfer any Option Shares to the Company upon exercise of such Option, if
such exercise, in the opinion of counsel for the Investors, would violate the
Securities Act (or any other Federal or state securities laws as may be in
effect at that time).
13. Protections Against Violations of Agreement. No
purported sale, assignment, mortgage, hypothecation, transfer, pledge,
encumbrance, gift, transfer in trust (voting or other) or other disposition
of, or creation of a security interest in or lien on, any of the Option or any
interest therein by any holder thereof in violation of the provisions of this
Agreement will be valid unless and until there has been full compliance with
said provisions to the satisfaction of the Investors. The foregoing
restrictions are in addition to and not in lieu of any other remedies, legal
or equitable, available to enforce said provisions.
Signatures on Following Page
IN WITNESS WHEREOF, the parties have executed this Agreement on this
day of , 2005.
FORTRESS INVESTMENT FUND II LLC
By:_________________________________
Name:
Title:
Address for Notices:
1251 Avenue of the Xxxxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
With a Copy to:
1251 Avenue of the Xxxxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
XXXXXX CAPITAL PARTNERS II, L.P.
By:_________________________________
Name:
Title:
XXXXXX CAPITAL PARTNERS I, L.P.
By:_________________________________
Name:
Title:
WHITECREST PARTNERS, L.P.
By:_________________________________
Name:
Title:
XXXXXX CAPITAL INTERNATIONAL,
LTD
By:_________________________________
Name:
Title:
RIVA CAPITAL PARTNERS, L.P.
By:_________________________________
Name:
Title:
Address for Notices:
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax:
GREENHILL CAPITAL PARTNERS, X.X.
XXXXXXXXX CAPITAL PARTNERS
(CAYMAN), X.X
XXXXXXXXX CAPITAL PARTNERS
(EXECUTIVES), X.X.
XXXXXXXXX CAPITAL, L.P.
By: GCP Managing Partner, L.P.,
as managing general partner of
each of the foregoing
partnerships
By: Greenhill Capital Partners,
LLC, its general partner
By:_________________________________
Name:
Title:
GREENHILL CAPITAL PARTNERS
(EMPLOYEES) II, L.P.
By: GCP Managing Partner II, L.P.,
as managing General partner
By: Greenhill Capital Partners,
LLC, its general partner
By: __________________________
Name:
Title:
Address for Notices:
-------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
The undersigned hereby accepts and
agrees to all the terms and
provisions of the foregoing Agreement
GLOBAL SIGNAL INC.
_____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President,
Chief Financial Officer and Assistant
Secretary
EXHIBIT A
Investor Percentage
-------- ----------
Fortress 48%
Abrams 32%
Greenhill 20%
EXHIBIT B
GLOBAL SIGNAL INC.
WRITTEN CONSENT OF A MAJORITY OF THE STOCKHOLDERS
IN LIEU OF SPECIAL MEETING OF GLOBAL SIGNAL INC.
THE UNDERSIGNED, constituting a majority of the stockholders of
Global Signal Inc., a Delaware corporation (the "Company"), do hereby consent
in writing to, and hereby adopt, the following resolutions pursuant to Section
228 of the Delaware General Corporation Law:
WHEREAS, the Board of Directors determined that it is advisable and
in the best interests of the Company and all of its stockholders that the
Company enter into an Investment Agreement with (a) Fortress Investment Fund
II LLC, a Delaware limited liability company ("Fortress"); (b) Xxxxxx Capital
Partners II, L.P., a Delaware limited partnership, Xxxxxx Capital Partners I,
L.P., a Delaware limited partnership, Whitecrest Partners, L.P., a Delaware
limited partnership, Xxxxxx Capital International, LTD, a Cayman Island
limited liability company and Riva Capital Partners, L.P., a Delaware limited
partnership (collectively, "Xxxxxx"); and (c) Greenhill Capital Partners,
L.P., a Delaware limited partnership, Greenhill Capital Partners (Executive),
L.P., a Delaware limited partnership, Greenhill Capital, L.P., a Delaware
limited partnership, Greenhill Capital Partners (Cayman), L.P., a Cayman
Islands limited partnership, Greenhill Capital Partners (Employees) II, L.P.,
a Delaware limited partnership (collectively, "Greenhill", and together with
Fortress and Xxxxxx, the "Investors", and each individually, an "Investor"), a
draft of which is attached hereto as Exhibit A hereto (the "Investment
Agreement"), pursuant to which the Company will issue (the "Stock Issuance")
shares of its common stock, par value $0.01 per share ("Common Stock") having
an aggregate value of up to $500 million to the Investors as part of the
financing for a transaction (the "Sprint Transaction") to lease certain
wireless and broadcast communications towers and certain related assets of
Sprint Corporation; and
NOW THEREFORE BE IT:
RESOLVED, that the stockholders set forth on the signature pages
hereto hereby approve, adopt, ratify and consent to the actions taken by the
Board of Directors with respect to the transactions contemplated by the
Investment Agreement, including, without limitation, (i) the issuance of
Common Stock to the Investors on the terms and subject to the conditions set
forth in the Investment Agreement and (ii) the issuance of equity securities
by the Company, subject to the approval of the Board of Directors, the net
proceeds of which are used to reduce the Commitment Amount (as such term is
defined in the Investment Agreement) or are used by the Company to repurchase
shares of its Common Stock pursuant to the form of Stock Option Agreement
attached as Exhibit B hereto.
IN WITNESS WHEREOF, this consent is hereby executed as of the 9th day
of February, 2005.
FORTRESS REGISTERED INVESTMENT
TRUST
By:________________________________
Its:_______________________________
FRIT PINN LLC
By:________________________________
Its:_______________________________
FORTRESS PINNACLE INVESTMENT FUND
LLC
By:________________________________
Its:_______________________________
GREENHILL CAPITAL PARTNERS, X.X.
XXXXXXXXX CAPITAL PARTNERS
(CAYMAN), X.X
XXXXXXXXX CAPITAL PARTNERS
(EXECUTIVES), X.X.
XXXXXXXXX CAPITAL, L.P.
By: GCP Managing Partner, L.P., as
managing general partner of
each of the foregoing
partnerships
By: Greenhill Capital Partners,
LLC, its general partner
By:________________________________
Name:
Title:
GREENHILL CAPITAL PARTNERS LLC
By:________________________________
Its:_______________________________
XXXXXX CAPITAL PARTNERS II, L.P.
By:________________________________
Its:_______________________________
XXXXXX CAPITAL PARTNERS I, L.P.
By:________________________________
Its:_______________________________
WHITECREST PARTNERS, L.P.
By:________________________________
Its:_______________________________
EXHIBIT C
Investor Percentage
-------- ----------
Fortress 48%
Abrams 32%
Greenhill 20%
