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
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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
Registration...............................................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
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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
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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
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
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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.
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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.
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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
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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
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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
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
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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
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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
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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.
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(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
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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
12
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
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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
14
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.
15
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.
16
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.
17
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.
18
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
19
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.
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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.
21
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
22
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
23
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
24
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.
25
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
26
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
27
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.
28
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
29
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: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Chief
Financial Officer and Assistant
Secretary
FORTRESS INVESTMENT FUND II LLC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer and
Secretary
XXXXXX CAPITAL PARTNERS II, L.P.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx for the General
Partner, Xxxxxx Capital, LLC
Title: Managing Member
XXXXXX CAPITAL PARTNERS I, L.P.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx for the General
Partner, Xxxxxx Capital, LLC
Title: Managing Member
WHITECREST PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx for the General
Partner, Xxxxxx Capital, LLC
Title: Managing Member
GLOBAL SIGNAL INC. INVESTMENT AGREEMENT SIGNATURE PAGE
XXXXXX CAPITAL INTERNATIONAL, LTD
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx for the Investment
Manager, Pamet Capital, LLC
Title: Managing Member
RIVA CAPITAL PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx for the General
Partner, Riva Capital Management,
LLC
Title: Managing Member
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: /s/ V. Xxxxx Xxxxxx
------------------------------------
Name: V. Xxxxx Xxxxxx
Title: Managing Director
GLOBAL SIGNAL INC. INVESTMENT AGREEMENT SIGNATURE PAGE
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: /s/ V. Xxxxx Xxxxxx
------------------------------------
Name: V. Xxxxx Xxxxxx
Title: Managing Director
GLOBAL SIGNAL INC. INVESTMENT AGREEMENT SIGNATURE PAGE
EXHIBIT A
FORM OF OPTION AGREEMENT
[Filed separately as Exhibit 10.3]
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) 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"), 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: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Its: Chief Operating Officer, Secretary
and Vice President
FRIT PINN LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Its: Secretary and Vice President
FORTRESS PINNACLE INVESTMENT FUND LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Its: Manager
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: /s/ V. Xxxxx Xxxxxx
----------------------------------------
Name: V. Xxxxx Xxxxxx
Title: Managing Director
XXXXXXXXX CAPITAL PARTNERS LLC
By: /s/ V. Xxxxx Xxxxxx
----------------------------------------
Name: V. Xxxxx Xxxxxx
Title: Managing Director
XXXXXX CAPITAL PARTNERS II, L.P.
By: /s/ Xxxxx Xxxxxx for Xxxxxx Capital, LLC
----------------------------------------
Its: General Partner
XXXXXX CAPITAL PARTNERS I, L.P.
By: /s/ Xxxxx Xxxxxx for Xxxxxx Capital, LLC
----------------------------------------
Its: General Partner
WHITECREST PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxx for Xxxxxx Capital, LLC
----------------------------------------
Its: General Partner
EXHIBIT C
INVESTOR PERCENTAGE
-------- ----------
Fortress 48%
Xxxxxx 32%
Greenhill 20%
