EXECUTION COPY
STOCKHOLDERS AGREEMENT
BY AND AMONG
CROWN CASTLE INTERNATIONAL
CORP.
AND
THE STOCKHOLDERS NAMED ON THE
SIGNATURE PAGES HEREIN
DATED AS OF OCTOBER 5,
2006
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
REGISTRATION RIGHTS
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Section 2.1
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Shelf Registration.
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7
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Section 2.2
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Demand Registration.
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10
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Section 2.3
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Offering Demands.
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11
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Section 2.4
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Piggyback Registrations.
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13
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Section 2.5
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Withdrawal Rights
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14
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Section 2.6
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Holdback Agreements
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15
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Section 2.7
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Registration Procedures.
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15
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Section 2.8
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Registration Expenses
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20
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Section 2.9
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Indemnification.
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21
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Section 2.10
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No Grant of Future Registration
Rights
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23
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ARTICLE III
BOARD OF DIRECTORS
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Section 3.1
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Board.
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24
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Section 3.2
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Committee Membership
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25
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ARTICLE IV
ADDITIONAL AGREEMENTS
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Section 4.1
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Lock-Up Period
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26
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Section 4.2
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Company Shareholder Rights Plan
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26
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Section 4.3
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Ownership of Common Stock
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26
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ARTICLE V
MISCELLANEOUS
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Section 5.1
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Effectiveness
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27
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Section 5.2
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Headings
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27
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Section 5.3
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Entire Agreement
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27
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Section 5.4
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No Inconsistent Agreements
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Section 5.5
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Further Actions; Cooperation
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27
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Section 5.6
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Termination of Certain Rights
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28
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Section 5.7
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Rule 144
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28
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Section 5.8
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Notices
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28
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Section 5.9
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Governing Law; Jurisdiction
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30
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Section 5.10
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Severability
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31
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Section 5.11
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Successors and Assigns
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31
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Section 5.12
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Amendments
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31
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Section 5.13
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Waiver
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31
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Section 5.14
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Counterparts
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31
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Section 5.15
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WAIVER OF JURY TRIAL
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31
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Section 5.16
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Specific Performance
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32
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Section 5.17
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Recapitalizations, Exchanges, Etc. affecting the
shares; of Common Stock
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New Issuances
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32
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Section 5.18
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Termination
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32
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Section 5.19
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Record of Registrable Securities
Ownership
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32
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ii
STOCKHOLDERS AGREEMENT
OF
CROWN CASTLE INTERNATIONAL
CORP.
THIS STOCKHOLDERS AGREEMENT dated as
of October 5, 2006 (this “ Agreement ”), by and
among (a) Crown Castle International Corp., a Delaware corporation
(the “ Company ”), (b) Fortress Pinnacle
Investment Fund, FRIT PINN LLC, Fortress Registered Investment
Trust, FRIT Holdings LLC and FIT GSL LLC (collectively, “
Fortress ”), (c) Greenhill Capital
Partners, LLC, GCP SPV1, LLC and GCP SPV2, LLC (collectively,
“ Greenhill ”) and (d) Abrams Capital
International, Ltd., Abrams Capital Partners I, LP, Abrams Capital
Partners II, LP, Whitecrest Partners, LP, Riva Capital
Partners, LP and 222 Partners, LLC (collectively, “
Abrams ” and, together with Fortress and Greenhill,
collectively, the “ Global Stockholders ”).
Certain capitalized terms used in this Agreement are defined in
Article I hereof. Unless otherwise indicated, references to
articles and sections shall be to articles and sections of this
Agreement.
WHEREAS, the Global Stockholders
currently own shares of common stock of Global Signal Inc., a
Delaware corporation (“ Global ”), and have
certain registration rights with respect to those shares pursuant
to the Amended and Restated Investor Agreement dated as of March
31, 2004 (as amended, the “ Existing Investor
Agreement ”);
WHEREAS, contemporaneously herewith,
the Company, CCSG Holdings LLC, a Delaware limited liability
company and a direct wholly owned subsidiary of the Company
(“ Merger Sub ”), and Global have entered into
an Agreement and Plan of Merger (the “ Merger
Agreement ”), pursuant to which, Global will be merged
with and into Merger Sub, with Merger Sub continuing as the
surviving company and a wholly owned subsidiary of the Company (the
“ Merger ”);
WHEREAS, upon consummation of the
transactions contemplated by the Merger Agreement (the date of such
consummation, the “ Effective Time ”), the
Global Stockholders will, in exchange for shares of common stock of
Global, acquire shares of Common Stock (as hereinafter
defined);
WHEREAS, pursuant to the Merger
Agreement and this Agreement, immediately after the Effective Time,
the Company will file an automatic shelf registration statement on
Form S-3 (the “ Automatic Shelf Registration Statement
”) to register the Common Stock received by the Global
Stockholders in the Merger;
WHEREAS, the Company has also agreed
to provide other registration rights as set forth
herein;
WHEREAS, the Global Stockholders
have agreed to terminate the Existing Investor Agreement as of the
Effective Time;
WHEREAS, the Global Stockholders
have also agreed to certain limitations on their ability to offer,
sell, contract to sell or otherwise dispose of the shares of Common
Stock received by them in the Merger for 180 days following the
Effective Time, as set forth in Section 4.1; and
WHEREAS, the Stockholders (as
hereinafter defined) deem it in their best interests and in the
best interests of the Company to provide for certain arrangements
with respect to the management of the Company and desire to enter
into this Agreement in order to effectuate such purpose and to set
forth certain of their respective rights and obligations in
connection with their investment in the Company.
NOW, THEREFORE, in consideration of
the foregoing and of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the
following terms shall have the following meanings:
“ Abrams ” shall
have the meaning assigned to such term in the preamble to this
Agreement.
“ Abrams Director
” shall have the meaning assigned to such term in Section
3.1(d).
“ Affiliate ”
shall have the meaning set forth in Rule 12b-2 promulgated under
the Exchange Act, provided , that no Stockholder shall be
deemed an Affiliate of any other Stockholder solely by reason of
any investment in the Company.
“ Agreement ”
shall have the meaning assigned to such term in the preamble to
this Agreement.
“ Automatic Shelf
Registration Statement ” shall have the meaning assigned
to such term in the fourth Recital.
“ Board ” shall
have the meaning assigned to such term in Section
3.1(a).
“ By-laws ” shall
have the meaning assigned to such term in Section
3.1(f).
“ Crown Indemnified
Persons ” shall have the meaning assigned to such term in
Section 2.9(b).
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“ Certificate of
Incorporation ” shall have the meaning assigned to such
term in Section 3.1(f).
“ Commission ”
shall mean the United States Securities and Exchange Commission or
any successor agency.
“ Common Stock ”
shall mean the Company’s common stock, par value $0.01 per
share, and any and all securities of any kind whatsoever of the
Company that may be issued and outstanding on or after the date
hereof in respect of, in exchange for, or upon conversion of shares
of Common Stock pursuant to a merger, consolidation, stock split,
stock dividend, recapitalization of the Company or
otherwise.
“ Company ” shall
have the meaning assigned to such term in the preamble to this
Agreement.
“ Company Common Stock
” shall have the meaning assigned to such term in Section
2.2(a)(iii).
“ Demand ” shall
have the meaning assigned to such term in Section
2.2(a).
“ Demand Registration
” shall have the meaning assigned to such term in Section
2.2(a).
“ Disqualified
Stockholder ” shall have the meaning assigned to such
term in Section 5.6.
“ Effective Time
” shall have the meaning assigned to such term in the third
Recital.
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“ Existing Investor
Agreement ” shall have the meaning assigned to such term
in the first Recital.
“ Fortress ”
shall have the meaning assigned to such term in the preamble to
this Agreement.
“ Fortress Director
” shall have the meaning assigned to such term in Section
3.1(b).
“ Fortress Excluded
Entity ” shall mean any current or future fund managed by
the Fortress or any of its Affiliates or any of their respective
investment advisory affiliates other than any private equity
fund.
“ Free Writing
Prospectus ” shall have the meaning assigned to such term
in Section 2.7(a)(iii).
3
“ Global ” has
the meaning assigned to such term in the first Recital.
“ Global Director
” has the meaning assigned to such term in Section
3.1(c).
“ Global Stockholders
” shall have the meaning assigned to such term in the
preamble to this Agreement.
“ Greenhill ”
shall have the meaning assigned to such term in the preamble to
this Agreement.
“ Initial Marketed
Secondary Offering ” shall mean the first Shelf Demand
Offering.
“ Initial Offer Notice
” shall have the meaning assigned to such term in Section
2.1(b).
“ Inspectors ”
shall have the meaning assigned to such term in Section
2.7(a)(viii).
“ Losses ” shall
have the meaning assigned to such term in Section
2.9(a).
“ Material Event Notice
” shall mean a certificate signed by an authorized officer of
the Company stating that as of the date of such certificate, the
Company has a material transaction (including, but not limited to,
a financing transaction) pending or in process, the disclosure of
which would, in the good faith judgment of the Board, materially
and adversely affect the Company.
“ Merger ” shall
have the meaning assigned to such term in the second
Recital.
“ Merger Agreement
” shall have the meaning assigned to such term in the second
Recital.
“ Merger Sub ”
shall have the meaning assigned to such term in the second
Recital.
“ NASD ” shall
mean the National Association of Securities Dealers,
Inc.
“ NYSE ” shall
mean the New York Stock Exchange.
“ Offering Demand
” shall mean a Shelf Demand Offering or a Demand
Registration.
“ Other Demanding
Sellers ” shall have the meaning assigned to such term in
Section 2.4(b).
“ Other Global
Stockholder ” shall mean (a) with respect to Fortress,
Greenhill or Abrams, (b) with respect to Greenhill, Fortress or
Abrams, and (c) with respect to Abrams, Fortress or
Greenhill.
“ Other Proposed
Sellers ” shall have the meaning assigned to such term in
Section 2.4(b).
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“ Permitted Transferee
” shall mean, with respect to each Global Stockholder, (a)
any Other Global Stockholder, (b) such Global Stockholder’s
Affiliates, (c) any general or limited partner or member of such
Global Stockholder (collectively, “ Stockholder
Affiliates ”), (d) any investment funds managed directly
or indirectly by such Global Stockholder or any Stockholder
Affiliate (a “ Stockholder Fund ”), (e) any
general or limited partner of any Stockholder Fund, (f) any
managing director, general partner, director, limited partner,
officer or employee of any Stockholder Affiliate, or any spouse,
lineal descendant, sibling, parent, heir, executor, administrator,
testamentary trustee, legatee or beneficiary of any of the
foregoing Persons described in this clause (f) (collectively,
“ Stockholder Associates ”), or (g) any trust,
the beneficiaries of which, or any corporation, limited liability
company or partnership, the stockholders, members or general or
limited partners of which, consist solely of any one or more of
such Global Stockholder, any Stockholder Affiliates, any
Stockholder Fund, any Stockholder Associates, their respective
spouses or their respective lineal descendants, provided
that, notwithstanding the foregoing, no Fortress Excluded Entity
shall be deemed to be a Permitted Transferee for any purpose under
this Agreement.
“ Person ” shall
mean any individual, firm, corporation, partnership, limited
liability company or other entity, and shall include any successor
(by merger or otherwise) of such entity.
“ Piggyback Notice
” shall have the meaning assigned to such term in Section
2.4(a).
“ Piggyback
Registration ” shall have the meaning assigned to such
term in Section 2.4(a).
“ Piggyback Seller
” shall have the meaning assigned to such term in Section
2.4(a).
“ Public Offering
” shall mean an offering of equity securities of the Company
pursuant to an effective registration statement under the
Securities Act, including an offering in which Stockholders are
entitled to sell Common Stock pursuant to the terms of this
Agreement.
“ Records ” shall
have the meaning assigned to such term in Section
2.7(a)(viii).
“ Registrable Amount
” shall mean an amount of Registrable Securities equal to
2.0% of the issued and outstanding Common Stock.
“ Registrable
Securities ” shall mean (a) the shares of Common Stock
beneficially owned (within the meaning of Rules 13d-3 and 13d-5
under the Exchange Act as in effect on the date of this Agreement)
by the Global Stockholders as of the Effective Time (including
shares of Common Stock subject to Converted Options (as defined in
the Merger Agreement) held by any Global Stockholder at the
Effective Time) as a result of the transactions contemplated by the
Merger Agreement and (b) any securities issued or issuable in
respect of such shares of Common Stock as provided in Section 5.17.
As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (i) a registration
statement registering such securities under the Securities Act has
been declared effective and such securities have been sold or
otherwise transferred by the holder thereof pursuant to such
effective registration statement,
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(ii) such securities may be sold
(including pursuant to Rule 144(k) of the Securities Act) without
any restriction under the Securities Act, (iii) such securities
shall have been otherwise transferred or (iv) such securities are
no longer outstanding; provided , however , that (A)
Registrable Securities acquired by a lender pursuant to the
foreclosure of a pledge of such Registrable Securities by any
Global Stockholder in connection with a credit agreement between
such lender and such Global Stockholder shall be deemed to be
Registrable Securities of such Global Stockholder for all purposes
hereunder, and (B) Registrable Securities held by a member of any
Stockholder Group will not cease to be Registrable Securities by
reason of clause (ii) of this definition for so long as such
Registrable Securities continue to be held by such member or any
other member of such Stockholder Group.
“ Registration Expenses
” shall have the meaning assigned to such term in Section
2.8.
“ Related Stockholders
” shall mean, with respect to any Global Stockholder, such
Global Stockholder’s Permitted Transferees, other than any
Other Global Stockholder.
“ Requested Information
” shall have the meaning assigned to such term in Section
2.9(g).
“ Requesting
Stockholder ” shall have the meaning assigned to such
term in Section 2.2(a).
“ Rights Agreement
” shall mean that certain Amended and Restated Rights
Agreement dated as of September 18, 2000, between the Company and
Mellon Investor Services LLC (as successor to ChaseMellon
Shareholder Services, L.L.C.), as rights agent.
“ Securities Act
” shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
“ Selling Holders
” shall have the meaning assigned to such term in Section
2.7(a)(i).
“ Selling Indemnified
Persons ” shall have the meaning assigned to such term in
Section 2.9(a).
“ Shelf Demand Notice
” shall have the meaning assigned to such term in Section
2.1(b).
“ Shelf Demand Offering
” shall have the meaning assigned to such term in Section
2.1(b).
“ Shelf Effectiveness
Period ” shall have the meaning assigned to such term in
Section 2.2(a).
“ Shelf Registration
Statement ” has the meaning assigned to such term in
Section 2.1(a).
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“ Stockholder ”
shall mean (a) each Global Stockholder and (b) each Permitted
Transferee of such Global Stockholder (other than any Other Global
Stockholder), in the case of clauses (a) and (b), to the extent
that such Global Stockholder and its Related Stockholders hold in
the aggregate at least a Registrable Amount, provided that,
notwithstanding the foregoing, no Fortress Excluded Entity shall be
deemed to be Stockholder for any purpose under this
Agreement.
“ Stockholder Group
” shall mean (a) with respect to Fortress, Fortress
Investment Holdings LLC and its controlled Affiliates, (b) with
respect to Greenhill, Greenhill & Co., Inc. and its controlled
Affiliates, and (c) with respect to Abrams, Abrams and its
controlled Affiliates.
“ Suspension Period
” shall have the meaning assigned to such term in Section
2.1(d).
“ Underwritten Offering
” shall mean a sale of securities of the Company to an
underwriter or underwriters for reoffering to the
public.
“ Underwriter Indemnified
Persons ” shall have the meaning assigned to such term in
Section 2.9(a).
ARTICLE II
REGISTRATION
RIGHTS
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Section 2.1
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Shelf Registration
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(a)
Automatic Shelf Registration Statement . The Company shall
file with the Commission, as soon as practicable, but in any event
within ten days after the Effective Time, the Automatic Shelf
Registration Statement, which shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the Securities
Act and contain a prospectus in such form to permit (x) each
Stockholder to sell its Registrable Securities and (y) each lender
to whom any Global Stockholder has pledged or pledges any of its
Registrable Securities to sell such Registrable Securities in the
event the applicable borrower or pledging Global Stockholder
defaults under the applicable credit agreement, in each case, at
any time beginning on or after the filing thereof with the
Commission pursuant to Rule 415 under the Securities Act or any
successor or similar rule that may be adopted by the Commission. If
the Company is not eligible to use an automatic shelf registration
statement at any time of determination of eligibility, the Company
shall promptly (but in any event within 30 days) post-effectively
amend the Automatic Shelf Registration Statement or file a new
registration statement on a Form S-3, in either case so to permit
(x) each Stockholders to sell its Registrable Securities and (y)
each lender to whom any Global Stockholder has pledged or pledges
any of its Registrable Securities to sell such Registrable
Securities in the event the applicable borrower or pledging
Stockholder defaults under the applicable credit agreement, in each
case, pursuant to Rule 415 under the Securities Act or any
successor or similar rule that may be adopted by the Commission.
The term “ Shelf Registration Statement ” as
used herein shall mean the Automatic Shelf Registration Statement
or any post-effective amendment thereto or a new registration
statement so filed pursuant to this Section 2.1. Upon any Shelf
Registration Statement having been filed:
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(i) the
Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective (including by filing
any necessary post-effective amendments to such Shelf Registration
Statement or a new Shelf Registration Statement) until the earlier
of (x) the date on which all the Registrable Securities covered by
such Shelf Registration Statement have been sold thereunder, (y)
such time as the Registrable Securities covered by such Shelf
Registration Statement are no longer outstanding or otherwise no
longer constitute Registrable Securities and (z) the date that is
three years from the date of filing of such Shelf Registration
Statement; and
(ii) the
Company shall pay the registration fee for all the Registrable
Securities at the time of filing of the Automatic Shelf
Registration Statement and shall not elect to pay any portion of
the registration fee on a deferred basis.
(b)
Shelf Demand Notice . Subject to the limitations set forth
in Section 2.3, if at any time following the filing of any Shelf
Registration Statement, one or more Stockholders desire to sell all
or any portion of the Registrable Securities under such Shelf
Registration Statement in an Underwritten Offering (any such sale,
a “ Shelf Demand Offering ”), such Stockholders
shall (i) notify (such notice, the “ Shelf Demand
Notice ”) the Company of such intent at least 15 days
prior to such proposed sale (or, in the case of a Shelf Demand
Offering that does not involve a “road show”, at least
three days prior to such proposed sale), and (ii) simultaneously
with delivery of the Shelf Demand Notice to the Company, deliver
written notice of such Shelf Demand Offering to each other Global
Stockholder that is a Stockholder on the date that such Shelf
Demand Notice is delivered to the Company. Notwithstanding the
foregoing, the Shelf Demand Notice for the Initial Marketed
Secondary Offering may be given on the first business day following
the Effective Time and, in such case, each of the parties hereto
agrees to use its reasonable best efforts to commence the Initial
Marketed Secondary Offering within 30 days of the Effective Time;
provided that the Initial Marketed Secondary Offering shall
be for the sale of Registrable Securities with an aggregate market
value of at least $600 million measured at the closing trading
price on the date such notice is given. Each Shelf Demand Offering
(other than the Initial Marketed Secondary Offering) shall be for
the sale of an amount of Registrable Securities equal to or greater
than the Registrable Amount. The Shelf Demand Notice shall: (1)
specify (x) the aggregate number of Registrable Securities
requested to be registered in such Shelf Demand Offering and (y)
the identity of the Stockholder or Stockholders requesting such
Shelf Demand Offering and (2) provide a representation from the
proposed selling Stockholders that all the shares proposed for sale
under such Shelf Demand Offering constitute Registrable
Securities.
(c)
Shelf Demand Offering . Subject to Section 2.3(b), the
Company shall include in the Shelf Demand Offering covered by such
Shelf Demand Notice all Registrable Securities of each Global
Stockholder and its Related Stockholders with respect to which the
Company has received a written request for inclusion therein from
any Global Stockholder within five days (or, in the case of any
Shelf Demand Notice that does not involve a “road
show”, within two days) after the Company has received the
Shelf Demand Notice, which written request shall comply with the
requirements applicable to a Shelf Demand Notice set forth in the
last sentence of such clause (b). The Company shall prepare and
file a prospectus
8
supplement, post-effective amendment
to the Shelf Registration Statement and/or Exchange Act reports
incorporated by reference into the Shelf Registration Statement and
take such other actions as necessary or appropriate to permit the
consummation of such Shelf Demand Offering, including, subject to
Section 2.3(a), conducting a “road show”, if requested
by such Stockholders. In the case of a Shelf Demand Offering that
does not involve a “road show”, the Company shall take
all actions to enable the Stockholders with respect to which the
Company has received a written request for inclusion in such
offering in accordance with the first sentence of this clause (c)
to price such offering within three days of receipt of the Shelf
Demand Notice; provided , that if a “comfort”
letter is required in connection with the pricing of such offering,
and the Company was unable to obtain such “comfort”
letter within three days of receipt of such Shelf Demand Notice,
then the Company shall use its reasonable best efforts to obtain
such “comfort” letter and price such offering as soon
as reasonably practicable. The Stockholders having notified or
directed the Company to commence a Shelf Demand Offering or to
include any of their Registrable Securities therein shall have the
right to withdraw such notice or direction by giving written notice
to the Company prior to the commencement of a “road
show” and such withdrawal will not count towards the
limitation in Section 2.3(a); provided , however ,
that (i) any Shelf Demand Offering for which a “road
show” has been conducted shall count towards such limitation,
regardless of whether such Shelf Demand Offering is consummated,
unless such Shelf Demand Offering is not consummated due to a
Suspension Period, and (ii) the Stockholders shall reimburse the
Company for all reasonable fees and expenses incurred by the
Company or paid by the Company on behalf of the Stockholders
pursuant to Section 2.8, in each case incurred in connection with
such Shelf Demand Offering.
(d)
Suspension of Shelf Registration Statement . Notwithstanding
anything to the contrary contained in this Agreement, the Company
shall be entitled, from time to time, by providing written notice
to the Global Stockholders, to require the Stockholders to suspend
the use of the prospectus for sales of Registrable Securities under
the Shelf Registration Statement for a reasonable period of time
not to exceed 60 days in succession or 105 days in the aggregate in
any 12 month period (a “ Suspension Period ”),
if (i) the Board determines in good faith and in its reasonable
judgment that the effectiveness and use of such Shelf Registration
Statement would cause the disclosure of material, non-public
information that the Company has a bona fide business purpose for
preserving as confidential or (ii) the Company determines that it
does not have all requisite audited and other financial information
publicly available and such financial information not then publicly
available contains material information. Immediately upon receipt
of such notice, the Stockholders covered by the Shelf Registration
Statement shall discontinue the disposition of Registrable
Securities under such Shelf Registration Statement until the
requisite changes to the prospectus have been made as required
below. Any Suspension Period shall terminate at such time as the
public disclosure of such information is made or the requisite
financial information becomes publicly available, as applicable.
After the expiration of any Suspension Period and without any
further request from a Stockholder, the Company shall as promptly
as reasonably practicable prepare a post-effective amendment or
supplement to the Shelf Registration Statement or the prospectus,
or any document incorporated therein by reference, or file any
other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the
prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
9
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Section 2.2
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Demand Registration
.
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(a)
Registration . At any time following the Effective Time,
except at any time during which a Shelf Registration Statement
pursuant to Section 2.1 is effective, available for the offer and
sale of Registrable Securities (without giving effect to any
Suspension Period) and not subject to any stop order, injunction,
or other order or requirement of the Commission or other
governmental agency or court (such period, a “ Shelf
Effectiveness Period ”), one or more Stockholders (each,
a “ Requesting Stockholder ”) shall be entitled
to make a written request of the Company (a “ Demand
”) to effect the registration under the Securities Act of an
amount of Registrable Securities equal to or greater than the
Registrable Amount (such registration, a “ Demand
Registration ”). A Stockholder making a Demand shall
simultaneously deliver written notice of such Demand to each other
Global Stockholder that is a Stockholder on the date that such
Demand is delivered to the Company. Upon such Demand, the Company
will, subject to Section 2.3(b) and the other the terms of this
Agreement, use its reasonable best efforts to effect the
registration under the Securities Act of:
(i) the
Registrable Securities that the Company has been so requested to
register by the Requesting Stockholder or Requesting Stockholders
in such Demand;
(ii) all
other Registrable Securities that the Company has been requested to
register pursuant to Section 2.2(b); and
(iii) all
shares of Common Stock that the Company may elect to register (such
shares, “ Company Common Stock ”) in connection
with any offering of Registrable Securities pursuant to Section
2.3(b);
all to the extent necessary to
permit the disposition (in accordance with the intended method of
disposition stated in such Demand) of the Registrable Securities
and the additional Company Common Stock, if any, to be so
registered.
(b)
Demands . A Demand shall: (i) specify (A) the aggregate
number of Registrable Securities requested to be registered in such
Demand Registration, (B) the intended method of disposition in
connection with such Demand Registration, to the extent then known,
and (C) the identity of the Requesting Stockholder or Requesting
Stockholders, and (ii) provide a representation from the proposed
selling Stockholders that all such shares proposed for sale under
such Demand Registration constitute Registrable Securities. Subject
to Section 2.3(b), the Company shall include in the Demand
Registration covered by such Demand all Registrable Securities of
each Global Stockholder and its Related Stockholders with respect
to which the Company has received a written request for inclusion
therein from any Global Stockholder within five days after the
Company has received a Demand, which written request shall comply
with the requirements applicable to a Demand set forth in the first
sentence of this clause (b).
(c)
Effective Registration Statement . A Demand Registration
shall not be deemed to have been effected and shall not count as a
Demand (i) unless a registration statement with respect thereto has
become effective and has remained effective for a period of at
least 60 days (or such shorter period in which all the Registrable
Securities included in such Demand
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Registration have actually been sold
thereunder), (ii) if, after the registration statement with respect
thereto has become effective, but prior to such 60th day or the
last day of such shorter period described in clause (i) above, such
Demand Registration becomes subject to any stop order, injunction
or other order or requirement of the Commission or other
governmental agency or court for any reason, or (iii) if the
conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such Demand
Registration are not satisfied, other than solely by reason of some
act or omission by such Requesting Stockholders; provided ,
however , that, notwithstanding the foregoing, (A) should a
registration statement with respect to a Demand Registration not
become effective due to the failure of the Requesting Stockholder
to perform its obligations under this Agreement in any material
respect or (B) should a Demand Registration that is an Underwritten
Offering for which a “road show” is conducted not be
consummated, the related request shall count as a
Demand.
(d)
Registration Statement Form . Demand Registrations shall be
on Form S-3 (or any successor form) or, if the Company is not
eligible to use Form S-3, another form reasonably selected by the
Company as appropriate for such Demand Registration and reasonably
acceptable to the Requesting Stockholder or Requesting
Stockholders.
(e)
Restrictions on Demand Registrations . The Company shall not
be obligated to (i) maintain the effectiveness of a registration
statement under the Securities Act, filed pursuant to a Demand
Registration, for a period longer than 60 days or (ii) effect any
Demand Registration (A) within six months of a “firm
commitment” Underwritten Offering in which all Stockholders
were offered “piggyback” rights pursuant to Section 2.4
(subject to Section 2.3(b)) and at least 50% of the number of
Registrable Securities requested by such Stockholders to be
included in such offering were included, (B) within six months of
any other Demand Registration, (C) if a Shelf Registration
Statement is effective pursuant to Section 2.1 or (D) if, in the
Company’s reasonable judgment, it is not feasible for the
Company to proceed with the Demand Registration because of the
unavailability of audited or other required financial statements.
In addition, the Company shall be entitled to postpone (upon
written notice to all Stockholders) for up to 105 days the filing
or the effectiveness of a registration statement for any Demand
Registration (but no more than twice in any period of 12
consecutive months), if the Board determines in good faith and in
its reasonable judgment that the filing or effectiveness of the
registration statement relating to such Demand Registration would
cause the disclosure of material, non-public information that the
Company has a bona fide business purpose for preserving as
confidential. In the event of such a postponement by the Company,
the holders of a majority of Registrable Securities held by the
Requesting Stockholder(s) shall have the right to withdraw such
Demand in accordance with Section 2.5.
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Section 2.3
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Offering Demands
.
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(a)
Number of Offering Demands; Road Shows . In addition to the
Initial Secondary Marketed Offering, (x) each of Greenhill and
Abrams shall be entitled to two Offering Demands for itself and/or
its Related Stockholders, and (y) Fortress shall be entitled to
five Offering Demands for itself and/or its Related Stockholders,
which, in the case of clauses (x) and (y), may be Shelf Demand
Offerings, Demand Registrations or both. Notwithstanding anything
to the contrary herein, (i) the aggregate number of “road
shows” the Company shall be required to participate in
pursuant to this Agreement shall not exceed six and (ii) the
Company
11
shall not be obligated to
participate in any “road show” pursuant to this
Agreement within 180 days of any other “road show” in
which the Company has participated or will be participating
pursuant to this Agreement.
(b)
Participation in Offering Demands . The Company may, at its
option, include securities other than Registrable Securities in an
Offering Demand, provided that the Company provides prompt
written notice to the Global Stockholders of its intent to include
such securities; provided , however , that if in
connection with such Offering Demand any managing underwriter (or,
if such Demand Registration is not an Underwritten Offering, a
nationally recognized independent investment bank selected by the
Stockholders participating in such Offering Demand, in conjunction
with the Company, and whose fees and expenses shall be borne solely
by the Company) advises the Company, in writing, that, in its
opinion, the inclusion of all of the securities, including
securities of the Company that are not Registrable Securities,
sought to be registered in connection with such Offering Demand
would adversely affect the marketability of the Registrable
Securities sought to be sold pursuant thereto, then the Company
shall include in such registration statement or offering only such
securities as the Company is advised by such underwriter (or
investment bank) can be sold without such adverse effect as follows
and in the following order of priority: (i) first, up to the number
of Registrable Securities requested to be included in such Offering
Demand by the Stockholders, which, in the opinion of the
underwriter (or investment bank) can be sold without such adverse
effect, pro rata among such Stockholders requesting such Offering
Demand on the basis of the amount of Registrable Securities held by
such Stockholders, (ii) second, securities the Company proposes to
sell, and (iii) third, all other securities of the Company duly
requested to be included in such Offering Demand, pro rata on the
basis of the amount of such other securities requested to be
included or such other method as determined by the
Company.
(c)
Selection of Underwriters . Anytime that an Offering Demand
involves an Underwritten Offering (including the Initial Marketed
Secondary Offering), the Stockholders participating in such
offering of Registrable Securities shall mutually select, in
conjunction with the Company (with the Company and such
Stockholders acting reasonably), the investment banker or
investment bankers and managers that will serve as lead and
co-managing underwriters with respect to the offering of such
Registrable Securities. Notwithstanding the foregoing sentence, the
Company hereby acknowledges and agrees that the entities set forth
on Schedule 1 hereto (or any of their respective Affiliates)
will be acceptable lead or co-managing underwriters with respect to
any Offering Demand.
(d)
Notices and Requests . Notwithstanding anything to the
contrary herein, (i) any Offering Demand made by any Stockholder or
any other notice or request provided by any Stockholder, in each
case pursuant to this Agreement, shall be made in each case only by
Fortress, Greenhill or Abrams, as the case may be, on behalf of
such Stockholder, and (ii) if the Company provides any notice
required to be given to the Stockholders pursuant to this Agreement
to a Global Stockholder, such notice shall be deemed given to such
Global Stockholder and its Related Stockholders for purposes of
this Agreement.
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Section 2.4
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Piggyback
Registrations .
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(a)
Right to Piggyback . Subject to the terms and conditions
hereof, whenever the Company proposes to register any of its equity
securities under the Securities Act (other than a registration by
the Company on a registration statement on Form S-4 or a
registration statement on Form S-8 or any successor forms thereto),
whether for its own account or for the account of other Persons
that do not constitute Stockholders, (each such registration, a
“ Piggyback Registration ”), the Company shall
give the Global Stockholders prompt written notice thereof (but not
less than ten business days prior to the initial filing by the
Company with the Commission of the registration statement or
prospectus supplement with respect thereto). Such notice (a “
Piggyback Notice ”) shall specify, at a minimum and as
applicable, the number or aggregate dollar amount of equity
securities proposed to be registered, the proposed date of filing
of such registration statement with the Commission, the proposed
means of distribution, the proposed managing underwriter or
underwriters (if any and if known) and a good faith estimate by the
Company of the proposed minimum offering price of such equity
securities. Upon the written request of any Global Stockholder on
behalf of any Person that on the date of the Piggyback Notice
constitutes a Stockholder (such Person, a “ Piggyback
Seller ”) given within ten days after such Piggyback
Notice is received by the Global Stockholders (which request shall
(x) specify the number of Registrable Securities then presently
intended to be disposed of by such Piggyback Seller and (y) provide
a representation from the proposed selling Stockholder that all
such shares proposed for sale constitute Registrable Securities),
the Company, subject to the terms and conditions of this Agreement,
shall use its reasonable best efforts to cause all such Registrable
Securities held by Piggyback Sellers with respect to which the
Company has received such written requests for inclusion to be
included in such Piggyback Registration on the same terms and
conditions as the Company’s equity securities being sold in
such Piggyback Registration.
(b)
Priority on Piggyback Registrations . If, in connection with
a Piggyback Registration, any managing underwriter (or, if such
Piggyback Registration is not an Underwritten Offering, a
nationally recognized independent investment bank selected by the
Company) advises the Company in writing that, in its opinion, the
inclusion of all the equity securities sought to be included in
such Piggyback Registration by (i) the Company, (ii) others who
have sought to have equity securities of the Company registered in
such Piggyback Registration pursuant to rights to demand (other
than pursuant to so-called “piggyback” or other
incidental or participation registration rights) such registration
(such Persons being “ Other Demanding Sellers
”), (iii) the Piggyback Sellers and (iv) any other proposed
sellers of equity securities of the Company (such Persons being
“ Other Proposed Sellers ”), as the case may be,
would adversely affect the marketability of the equity securities
sought to be sold pursuant thereto, then the Company shall include
in the registration statement applicable to such Piggyback
Registration only such equity securities as the Company is so
advised by such underwriter can be sold without such an effect, as
follows and in the following order of priority:
(i) if
the Piggyback Registration relates to an offering for the
Company’s own account, then (A) first, such number of equity
securities to be sold by the Company as determined by the Company,
(B) second, Registrable Securities of Piggyback Sellers, pro rata
on the basis of the amount of such
13
Registrable Securities held by such
Piggyback Sellers, and (C) third, other equity securities held by
any Other Proposed Sellers; or
(ii) if
the Piggyback Registration relates to an offering other than for
the Company’s own account, then (A) first, such number of
equity securities sought to be registered by each Other Demanding
Seller, pro rata in
