EXHIBIT 4.12
GLOBAL SIGNAL INC.,
__________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
----------
FORM OF
DEPOSIT AGREEMENT
----------
Dated as of [DATE]
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1
Form and Transfer of Receipts....................................2
Section 2.2
Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof...............................................4
Section 2.3
Redemption of Stock..............................................4
Section 2.4
Registration of Transfer of Receipts.............................6
Section 2.5
Split-Ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock.................................6
Section 2.6
Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts...............................7
Section 2.7
Lost Receipts, Etc...............................................8
Section 2.8
Cancellation and Destruction of Surrendered Receipts.............8
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE
COMPANY
Section 3.1
Filing Proofs, Certificates and Other Information................8
Section 3.2
Payment of Taxes or Other Governmental Charges...................9
Section 3.3
Representation and Warranty as to Stock..........................9
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES
Section 4.1
Cash Distributions...............................................9
Section 4.2
Distribution Other than Cash, Rights, Preferences or
Privileges......................................................10
Section 4.3
Subscription Rights, Preferences or Privileges..................10
Section 4.4
Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts.............................................11
Section 4.5
Voting Rights...................................................12
Section 4.6
Changes Affecting Deposited Securities and
Reclassifications, Recapitalization, Etc........................12
Section 4.7
Inspection of Reports...........................................13
Section 4.8
Lists of Receipt Holders........................................13
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND THE COMPANY
Section 5.1
Maintenance of Offices, Agencies and Transfer Books By
the Depositary; Registrar.......................................13
Section 5.2
Prevention of or Delay in Performance By the Depositary,
The Depositary's Agents, the Registrar or the Company...........14
Section 5.3
Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company...................................15
Section 5.4
Resignation and Removal of the Depositary; Appointment
of Successor Depositary.........................................15
Section 5.5
Corporate Notices and Reports...................................16
Section 5.6
Indemnification By the Company..................................16
Section 5.7
Charges and Expenses............................................17
Section 5.8
Tax Compliance..................................................17
ARTICLE VI AMENDMENT AND TERMINATION
Section 6.1
Amendment.......................................................18
Section 6.2
Termination.....................................................18
ARTICLE VII MISCELLANEOUS
Section 7.1
Counterparts....................................................18
Section 7.2
Exclusive Benefit of Parties....................................18
Section 7.3
Invalidity of Provisions........................................19
Section 7.4
Notices.........................................................19
Section 7.5
Depositary's Agents.............................................19
Section 7.6
Holders of Receipts are Parties.................................19
Section 7.7
Governing Law...................................................20
Section 7.8
Inspection of Deposit Agreement.................................20
Section 7.9
Headings........................................................20
ii
DEPOSIT AGREEMENT dated as of [DATE], among GLOBAL SIGNAL INC., a
Delaware corporation (the "Company"), __________, a __________
corporation (the
"Depositary"), and the holders from time to time of the Receipts
described
herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of ________________
preference
shares, $__ par value each, of the Company with the Depositary for
the purposes
set forth in this Deposit Agreement and for the issuance hereunder
of Receipts
evidencing Depositary Shares in respect of the Stock so deposited;
and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A
annexed hereto, with appropriate insertions, modifications and
omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein
and
such other good and valuable consideration, receipt of which is
hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit
Agreement:
"Certificate of Designation" shall mean the Certificate of
Designation
establishing and setting forth the rights, preferences, privileges
and
limitations of the Stock.
"Certificate of Incorporation" shall mean the amended and restated
certificate of incorporation of the Company, together with any
amendments
thereto, filed with the Secretary of State of the State of
Delaware.
"Company" shall mean GLOBAL SIGNAL INC., a Delaware corporation,
and
its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended,
modified or supplemented from time to time in accordance with the
terms hereof.
"Depositary" shall mean __________, and any successor as Depositary
hereunder.
"Depositary Shares" shall mean an interest in [fraction] of a share
of
Stock deposited with the Depositary hereunder and the same
proportionate
interest in any and all other property received by the Depositary
in respect of
such share of Stock and held under this Deposit Agreement, all as
evidenced by
the Receipts issued hereunder. Subject to the terms of this Deposit
Agreement,
each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of
the Stock
represented by such Depositary Share, including the dividend,
voting and
liquidation rights contained in the Certificate of Designation, and
to the
benefits of all obligations of the Company under the Certificate of
Designation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the office of the Depositary, in
the
Borough of Manhattan, New York, New York, at which at any
particular time its
depositary receipt business shall be administered, which at the
date of this
Deposit Agreement is located at ____________.
"Receipt" shall mean one of the depositary receipts substantially
in
the form set forth as Exhibit A annexed hereto, issued hereunder,
whether in
definitive or temporary form evidencing the number of Depositary
Shares held of
record by the holder of such Depositary Shares.
"Record Holder," as applied to a Receipt, shall mean the individual
entity or person in whose name a Receipt is registered on the books
of the
Depositary or any register of any Registrar maintained for such
purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed by the Depositary to register ownership and transfers of
Receipts as
herein provided and which may include the Depositary.
"Securities Act" shall mean the Securities Act of 1933.
"Stock" shall mean shares of the Company's _________ Preference
Shares, $___ par value per share.
"Transfer Agent" shall mean the Registrar.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 Form and Transfer of Receipts.
Definitive Receipts shall be in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions,
modifications
and omissions, as hereinafter provided. Pending the preparation of
definitive
Receipts, the Depositary, upon the written order of the Company
delivered in
compliance with Section 2.2, shall execute and deliver temporary
receipts which
shall be printed, lithographed, typewritten or otherwise
substantially of the
tenor of the definitive Receipts in lieu of which they are issued
and with such
appropriate insertions, omissions, substitutions and other
variations as the
persons executing such Receipts may determine, as evidenced by
their execution
of
2
such Receipts. If temporary Receipts are issued, the Company and
the Depositary
will cause definitive Receipts to be prepared without unreasonable
delay. After
the preparation of definitive Receipts, the temporary Receipts
shall be
exchangeable for definitive Receipts upon surrender of the
temporary Receipts at
the Depositary's Office, without charge to the holder. Upon
surrender for
cancellation of any one or more temporary Receipts, the Depositary
shall execute
and deliver in exchange therefor definitive Receipts representing
the same
number of Depositary Shares as represented by the surrendered
temporary Receipt
or Receipts registered in the name (and only the name) of the
holder of the
temporary Receipt. Such exchange shall be made at the Company's
expense and
without any charge therefor to the holder. Until so exchanged, the
temporary
Receipts shall in all respects be entitled to the same benefits
under this
Deposit Agreement, and with respect to the Stock, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual
signature
of a duly authorized signatory of the Depositary; provided, that
such signature
may be a facsimile if a Registrar for the Receipts (other than the
Depositary)
shall have been appointed and such Receipts are countersigned by
manual
signature of a duly authorized signatory of the Registrar. No
Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid
or obligatory
for any purpose unless it shall have been executed manually by a
duly authorized
signatory of the Depositary or, if a Registrar for the Receipts
(other than the
Depositary) shall have been appointed, by manual or facsimile
signature of a
duly authorized signatory of the Depositary and countersigned
manually by a duly
authorized signatory of such Registrar. The Depositary shall record
on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts bearing
the manual or facsimile signatures of individuals who were at any
time proper
officers of the Depositary or the Registrar, as the case may be,
shall
constitute adequate signatures hereunder, notwithstanding that such
individuals
or any of them have ceased to hold such offices prior to the
delivery of such
Receipt or did not hold such offices on the date of delivery of
such Receipts.
Receipts shall be in denominations of any number of whole
Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text
thereof
such legends or recitals or changes not inconsistent with the
provisions of this
Deposit Agreement as may be required by the Depositary or required
to comply
with any applicable law or any regulation or with the rules and
regulations or
any securities exchange upon which the Stock, the Depositary Shares
or the
Receipts may be listed or to conform with any usage with respect
thereto, or to
indicate any special limitations or restrictions to which any
particular
Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of
transfer, shall be
transferable by delivery with the same effect as in the case of a
negotiable
instrument; provided, however, that until transfer of a Receipt
shall be
registered on the books of the Depositary as provided in Section
2.4, the
Depositary may, notwithstanding any notice to the contrary, treat
the record
holder thereof at such time as the absolute owner thereof for
3
the purpose of determining the person entitled to distributions of
dividends or
other distributions with respect to the Stock or to any notice
provided for in
this Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
Section 2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof.
Subject to the terms and conditions of this Deposit Agreement, the
Company or any other person authorized by the Company, as notified
in writing to
the Depositary, may from time to time deposit shares of the Stock
under this
Deposit Agreement by delivery to the Depositary of a certificate or
certificates
for the Stock to be deposited. Such certificate or certificates
representing the
Stock shall be properly endorsed or accompanied, if required by the
Depositary,
by a duly executed instrument of transfer or endorsement, in form
satisfactory
to the Depositary, together with such certifications as may be
required by the
Depositary in accordance with the provisions of this Deposit
Agreement, and
together with a written order of the Company, directing the
Depositary to
execute and deliver to the person or persons named in such order, a
Receipt or
Receipts evidencing in the aggregate the number of Depositary
Shares
representing such deposited Stock.
All Stock deposited by the Company with the Depositary shall be
held
by the Depositary at the Depositary's Office or at such other place
or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited with the Depositary by the Company in accordance
with the
provisions of this Section, together with the other documents
required as above
specified, and upon recordation of the Stock on the books of the
Company in the
name of the Depositary or its nominee, the Depositary shall execute
and deliver
to the person or persons named in the written order delivered to
the Depositary
a Receipt or Receipts, evidencing in the aggregate the number of
Depositary
Shares representing the Stock so deposited. Such Receipt or
Receipts shall be
registered by the Depositary or the Registrar in such name or names
as may be
requested by the person or persons as specified in the written
order. The
Depositary shall execute and deliver such Receipts at the
Depositary's Office or
such other offices, if any, as such person may designate. Delivery
at other
offices shall be at the risk and expense of the person requesting
such delivery.
The Depositary may not execute and deliver Receipts pursuant to
this Section
prior to receipt of Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends
or other
distributions of Stock, if any, there shall be deposited hereunder
not more than
[___] shares of Stock.
Section 2.3 Redemption of Stock.
Whenever the Company shall elect or be required to redeem shares of
Stock in accordance with the provisions of the Certificate of
Designation, it
shall (unless
4
otherwise agreed to in writing with the Depositary) give or cause
to be given to
the Depositary not less than 10 days' prior notice of the proposed
date of the
mailing of a notice of redemption of Stock to the record holders of
receipts and
of the number of such shares held by the Depositary to be so
redeemed and the
applicable redemption price, which notice shall be accompanied by a
certificate
from the Company stating that such redemption of Stock is in
accordance with the
provisions of the Certificate of Designation. On the date of such
redemption,
provided that the Company shall then have paid or caused to be paid
in full to
the Depositary the redemption price of the Stock to be redeemed,
plus an amount
equal to any accrued and unpaid dividends thereon to the date fixed
for
redemption, in accordance with the provisions of the Certificate of
Designation,
the Depositary shall redeem the number of Depositary Shares
representing such
Stock. The Depositary shall mail notice of the Company's redemption
of Stock and
the proposed simultaneous redemption of the number of Depositary
Shares
representing the Stock to be redeemed by first-class mail, postage
prepaid, not
less than 30 and not more than 90 days prior to the date fixed for
redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the
record holders
of the Receipts evidencing the Depositary Shares to be so redeemed,
at the
addresses of such holders as they appear on the records of the
Depositary on the
[_] day prior to the date of such notice; but neither failure to
mail any such
notice of redemption of Depositary Shares to one or more such
holders nor any
defect in any notice of redemption of Depositary Shares to one or
more such
holders shall affect the sufficiency of the proceedings for
redemption as to
other holders. Each such notice shall state: (i) the Redemption
Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all
the Depositary
Shares to be redeemed, the number of such Depositary Shares held by
such holder
to be so redeemed; (iii) the redemption price; (iv) the place or
places where
Receipts evidencing Depositary Shares are to be surrendered for
payment of the
redemption price; and (v) the dividends in respect of the Stock
represented by
the Depositary Shares to be redeemed will cease to accumulate on
such Redemption
Date. In case less than all the outstanding Depositary Shares are
to be
redeemed, the Depositary Shares to be so redeemed shall be selected
by lot or
pro rata (as nearly as may be) as may be determined by the
Depositary or any
other method which may be determined by the Depositary in its sole
discretion to
be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to
provide the
funds necessary to redeem the Stock evidenced by the Depositary
Shares called
for redemption), (i) dividends in respect of the shares of Stock so
called for
redemption shall cease to accrue from and after such date, (ii) the
Depositary
Shares being redeemed from such proceeds shall be deemed no longer
to be
outstanding, (iii) all rights of the holders of Receipts evidencing
such
Depositary Shares (except the right to receive the redemption
price) shall, to
the extent of such Depositary Shares, cease and terminate and, (iv)
upon
surrender in accordance with such redemption notice of the Receipts
evidencing
any such Depositary Shares called for redemption (properly endorsed
or assigned
for transfer, if the Depositary shall so require), such Depositary
Shares shall
be redeemed by the Depositary at a redemption price per Depositary
Share equal
to [____________] [_]% of the redemption price per share paid in
respect of the
shares of Stock plus all money and other property, if any,
represented by such
Depositary Shares, including all amounts
5
paid by the Company in respect of dividends which on the Redemption
Date have
accumulated on the shares of Stock to be so redeemed and have not
theretofore
been paid.
If fewer than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of
such Receipt
upon its surrender to the Depositary, together with the redemption
payment, a
new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and
not called for redemption. The Depositary shall remit to the
Company any funds
deposited by or for the account of the Company for the purpose of
redeeming any
Depositary Shares that the holders thereof have failed to redeem
after two years
from the date of such deposit, without further action necessary on
the part of
the Company.
Section 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Registrar, on behalf of the Depositary, shall register on its books
from time to
time transfers of Receipts upon notice to the Registrar by the
Depositary of any
surrender of a Receipt for transfer by the holder in person or by
duly
authorized attorney, which Receipt in each case must be properly
endorsed or
accompanied by a properly executed instrument of transfer. Upon
surrender of a
properly endorsed Receipt or Receipts, accompanied by a properly
executed
instrument of transfer, the Depositary shall execute a new Receipt
or Receipts
evidencing the same aggregate number of Depositary Shares as those
evidenced by
the Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to
or upon the order of the transferee named in the endorsement or
instrument of
transfer.
Section 2.5 Split-Ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depositary's Office
or
at such other offices as it may designate for the purpose of
effecting a
split-up or combination of such Receipt or Receipts, and subject to
the terms
and conditions of this Deposit Agreement, the Depositary shall
execute and
deliver a new Receipt or Receipts to the holder thereof or to such
holder's
order in the denominations requested, evidencing the aggregate
number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
The
Depositary shall give prompt notice of such action and the
certificate numbers
to the Registrar, if applicable, for the purpose of recording such
split-up or
consolidation.
Any holder of a Receipt or Receipts representing any number of
whole
shares of Stock may (unless the related Depositary Shares have
previously been
called for redemption) withdraw the number of whole shares of Stock
underlying
such Depositary Shares and all money and other property, if any,
represented
thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or
at such other offices as the Depositary may designate for such
withdrawals.
Thereafter, without unreasonable delay, the Depositary shall
deliver to such
holder, or to the person or persons designated by such holder as
hereinafter
provided, the number of whole shares of Stock and all money and
6
other property, if any, represented by the Receipt or Receipts so
surrendered
for withdrawal, but holders of such whole shares of Stock will not
thereafter be
entitled to deposit such Stock hereunder or to receive Depositary
Shares
therefor. If a Receipt or Receipts delivered by the holder to the
Depositary in
connection with such withdrawal shall evidence a number of
Depositary Shares in
excess of the number of Depositary Shares representing the number
of whole
shares of Stock to be so withdrawn, the Depositary shall at the
same time, in
addition to such number of whole shares of Stock and such money and
other
property, if any, to be so withdrawn, deliver to such holder, or
(subject to
Sections 2.4 and 3.2) upon his order, a new Receipt evidencing such
excess
number of Depositary Shares not withdrawn. Delivery of the Stock
and money and
other property, if any, being withdrawn may be made by the delivery
of such
certificates, documents of title and other instruments as the
Depositary may
deem appropriate.
If the Stock and the money and other property, if any, being
withdrawn
are to be delivered to a person or persons other than the record
holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such
holder shall
execute and deliver to the Depositary a written order so directing
the
Depositary, and the Depositary may require that the Receipt or
Receipts
surrendered by such holder for withdrawal of such shares of Stock
be properly
endorsed in blank or accompanied by a properly executed instrument
of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by
the
Depositary at the Depositary's Office, except that, at the request,
risk and
expense of the holder surrendering such Receipt or Receipts and for
the account
of the holder thereof, such delivery may be made at such other
place as may be
designated by such holder.
Section 2.6 Limitations on Execution and Delivery, Transfer,
Surrender
and Exchange of Receipts.
As a condition precedent to the execution and delivery,
registration
of transfer, split-up, combination, surrender or exchange of any
Receipt, the
Depositary, any of the Depositary's Agents or the Company may
require payment to
it of a sum sufficient for the payment (or, in the event that the
Depositary or
the Company shall have made such payment, the reimbursement to it)
of any
charges or expenses payable by the holder of a Receipt pursuant to
Section 5.7,
may require the production of evidence satisfactory to it as to the
identity and
genuineness of any signature; and may also require compliance with
the rules and
regulations of any governmental body, any stock exchange or
applicable
self-regulatory body, including without limitation, the National
Association of
Securities Dealers, Inc. (the "NASD") or such regulations, if any,
as the
Depositary or the Company may establish consistent with the
provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against
Stock deposited with the Depositary may be suspended, the
registration of
transfer of Receipts may be refused and the registration of
transfer, surrender
or exchange of outstanding Receipts may be suspended (i) during any
period when
the register of stockholders of the Company is closed with respect
to the Stock,
(ii) if any such action is
7
deemed necessary or advisable by the Depositary, any of the
Depositary's Agents
or the Company at any time or from time to time because of any
requirement of
law or of any government or governmental body or commission, stock
exchange or
the NASD or under any provision of this Deposit Agreement, or (iii)
with the
approval of the Company, for any other reason. Without limitation
of the
foregoing, the Depositary shall not knowingly accept for deposit
under this
Deposit Agreement any shares of Stock that are required to be
registered under
the Securities Act unless a registration statement under the
Securities Act is
in effect as to such shares of Stock.
Section 2.7 Lost Receipts, Etc.
If any mutilated Receipt is surrendered to the Depositary, the
Depositary may, in its discretion, execute and deliver in exchange
therefor a
new Receipt of like form and tenor in exchange and substitution for
such
mutilated Receipt. In case any Receipt shall be destroyed, lost or
stolen, the
Depositary shall execute and deliver a Receipt to the holder
thereof of like
form and tenor in exchange and substitution for such destroyed,
lost or stolen
Receipt, upon (i) the filing by the holder thereof with the
Depositary of
evidence satisfactory to the Depositary of such destruction or loss
or theft of
such Receipt, of the authenticity thereof and of such holder's
ownership
thereof, (ii) the holder's furnishing the Depositary with
reasonable
indemnification satisfactory to
