Exhibit 10.4
Global Signal Inc.
Restricted Shares Award Agreement
This Restricted Shares Award Agreement (the "Agreement"), executed as of April
5, 2006, is entered into by and between Global Signal Inc., a Delaware
Corporation with its principal office at 301 North Cattleman Road, Suite 300,
Sarasota, Florida 34232 (the "Corporation"), and Steven G. Osgood (the
"Employee").
WHEREAS, the Corporation has established the Global Signal Inc. Omnibus Stock
Incentive Plan (the "Plan"), a copy of which may be obtained by written or
telephonic request to the Corporation's Secretary, and which Plan is made a
part hereof;
WHEREAS, the Employee is a valued and trusted employee of the Corporation and
the Corporation believes it to be in the best interests of the Corporation to
secure the future services of the Employee by providing the Employee with an
inducement to remain an employee of the Corporation or any of its affiliates
or subsidiaries and through the grant of shares of common stock, par value
$0.01 per share, of the Corporation (the "Common Stock"); and
WHEREAS, on April 5, 2006 (the "Grant Date") the Compensation Committee of the
Board of Directors of the Corporation determined that the Employee be granted
shares of the Common Stock subject to the restrictions stated below and as
hereinafter set forth effective upon the later of the execution by Employee of
an employment agreement ("Employment Agreement") with Global Signal Services LLC
subsidiaries and the first day of Employee's employment with Global Signal
Services LLC ("Effective Date");
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1) Grant of Stock. Pursuant to Section 9 of the Plan, and subject to the terms
and conditions of this Agreement and of the Plan, the Corporation hereby
grants to the Employee one hundred and twenty thousand (120,000) shares of
Common Stock, effective as of the Effective Date (the "Restricted Stock").
As more fully described below, the Restricted Stock granted hereby is
subject to forfeiture by the Employee if certain criteria are not
satisfied.
2) Vesting Schedule. The Corporation shall cause each certificate for
Restricted Stock to be issued in Employee's name and such shares shall be
fully paid and nonassessable and free from preemptive rights. The interest
of the Employee in the Restricted Stock shall vest as to twenty percent
(20%) such Restricted Stock on the Effective Date, and as to one-fourth of
the remaining portion, or an additional twenty percent (20%), beginning on
December 31, 2007, and on each succeeding December 31, so as to be 100%
vested on December 31, 2010, conditioned upon the Employee's continued
employment with the Corporation as of each vesting date. Notwithstanding
the foregoing, the interest of the Employee in the Restricted Stock shall
vest as to:
a) An additional 20% of the Restricted Stock subject to this Grant upon
a termination of the Employee's employment (i) by the Corporation
other than for "Cause" or (ii) by the Employee for "Good Reason"
("Cause" and "Good Reason" each, as defined in the Employee's
Employment Agreement with Global Signal Services LLC), (it being
understood that the remainder of the Restricted Stock shall be
forfeited to the Company in connection with any such termination of
employment); or
b) 100% of the then unvested Restricted Stock in the event of a "Change
of Control" (as defined in the Plan).
In the event Employee is a "specified employee" within the meaning of
Section 409A(a)(2)(B)(1) of the Code, the vesting of the Restricted
Stock shall be delayed in accordance with the provisions of such
section to the extent necessary or appropriate to avoid adverse tax
consequences under Section 409A of the Code.
3) Restrictions.
a) The Restricted Stock or rights granted hereunder may not be sold,
pledged or otherwise transferred until the Restricted Stock becomes
vested in accordance with Section 2. The period of time between the
date hereof and the date Restricted Stock becomes vested, with
respect to each portion of the Restricted Stock, is referred to
herein as the "Restricted Period."
b) If the Employee's employment with the Corporation is terminated for
any reason, the Restricted Stock subject to the provisions of this
Agreement which have not vested at the time of the Employee's
termination of employment shall be forfeited by the Employee, and
ownership transferred back to the Corporation.
4) Legend. All certificates representing any shares of Stock of the
Corporation subject to the provisions of this Agreement shall have endorsed
thereon the following legend:
THE SHARES REPRESENTED BY THIS STOCK CERTIFICATE HAVE BEEN GRANTED AS RESTRICTED
STOCK. WITHOUT THE PRIOR WRITTEN CONSENT OF THE CORPORATION, THE SHARES
REPRESENTED BY THIS STOCK CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR
ASSIGNED OR OTHERWISE ENCUMBERED OR DISPOSED OF UNLESS THE RESTRICTIONS SET
FORTH IN THE UNVESTED STOCK AWARD AGREEMENT BETWEEN THE REGISTERED HOLDER OF
THESE SHARES AND THE CORPORATION SHALL HAVE LAPSED.
The Corporation may endorse such legend or legends upon the stock
certificates for Restricted Stock and may issue such "stop transfer"
instructions to its transfer agent in respect of such Restricted Stock as,
in its discretion, it determines to be necessary or appropriate to: (i)
prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act of 1933, as amended; and (ii)
implement the provisions of the Agreement and any agreement between the
Corporation and the Employee.
5) Escrow. Upon execution of this Agreement, the certificate or certificates
evidencing the Restricted Stock subject hereto together with the stock
power, attached hereto as Exhibit A, shall be delivered to and deposited
with the Secretary of the Corporation as Escrow Agent in this
transaction. Such certificates are to be held by the Escrow Agent until
termination of the Restricted Period, when they shall be released by said
Escrow Agent to the Employee. The Corporation shall serve as
attorney-in-fact for the Employee during the Restricted Period, with full
power and authority in the Employee's name to assign and convey to the
Corporation any Restricted Stock held by the Corporation for the Employee
if the Employee forfeits the Restricted Stock under the terms of this
Agreement. Upon the vesting of the Restricted Stock, the Corporation
shall so notify the Secretary of the Corporation and the Secretary shall
obtain from the Corporation stock certificates representing all such
shares that have vested, which stock certificates shall not bear any
restrictive endorsement making reference to this Agreement, and shall
promptly issue and deliver such stock certificates, if any, to the
Employee. 6) Employee Shareholder Rights. During the Restricted Period,
the Employee shall have all the rights of a shareholder with respect to
the Restricted Stock except for the right to transfer the Restricted
Stock, as set forth in Section 3. Accordingly, the Employee shall have
the right to vote the Restricted Stock and to receive any dividends paid
to or made with respect to the Restricted Stock. 7) Permanent and Total
Disability of Employee. In the event of the Disability of the Employee,
any vested Restricted Stock shall be delivered to the Employee if legally
competent or to a legally designated guardian or representative if the
Employee is legally incompetent. 8) Death of Employee. In the event of
the Employee's death after any vesting date but prior to the delivery to
Employee in accordance with Section 5 above of certificates representing
the shares which have vested, certificates representing such shares shall
be delivered to the Employee's estate or designated beneficiary. 9)
Taxes. Notwithstanding anything to the contrary, the release of the
shares of Restricted Stock hereunder shall be conditioned upon Employee
making adequate provision for federal, state or other withholding
obligations, if any, which may arise upon the vesting of the Restricted
Stock.
Set forth below is a brief summary as of the Grant Date of certain United
States federal tax consequences of the award of Restricted Stock. THIS
SUMMARY DOES NOT ADDRESS SPECIFIC STATE, LOCAL OR FOREIGN TAX CONSEQUENCES
THAT MAY BE APPLICABLE TO THE EMPLOYEE. THE EMPLOYEE UNDERSTANDS THAT THIS
SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
TO ENSURE COMPLIANCE WITH TREASURY DEPARTMENT REGULATIONS, WE ADVISE YOU
THAT, UNLESS OTHERWISE EXPRESSLY INDICATED, ANY FEDERAL TAX ADVICE CONTAINED
IN THIS RESTRICTED SHARES AWARD AGREEMENT WAS NOT INTENDED OR WRITTEN TO BE
USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED
PENALTIES UNDER THE CODE OR (II) PROMOTING, MARKETING OR RECOMMENDING TO
ANOTHER PARTY ANY TAX-RELATED MATTERS ADDRESSED HEREIN.
Unless the Employee has filed a Section 83(b) election as discussed below,
the Employee shall recognize ordinary income at the time or times the
Restricted Stock vests in an amount equal to the fair market value of such
shares on each such date.
The Employee hereby acknowledges that he or she has been informed that, with
respect to the grant of Restricted Stock, an election may be filed by the
Employee with the Internal Revenue Service, within 30 days of the Grant
Date, electing pursuant to Section 83(b) of the Internal Revenue Code of
1986, as amended (the "Code"), to be taxed currently on the fair market
value of the Restricted Stock as of the Grant Date.
THE EMPLOYEE ACKNOWLEDGES THAT IT IS THE EMPLOYEE'S SOLE RESPONSIBILTY AND
NOT THE CORPORATION'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE
CODE, EVEN IF THE EMPLOYEE REQUESTS THE CORPORATION OR ITS REPRESENTATIVE TO
MAKE THIS FILING ON THE EMPLOYEE'S BEHALF.
BY SIGNING THIS AGREEMENT, THE EMPLOYEE REPRESENTS THAT HE OR SHE HAS
REVIEWED WITH HIS OR HER OWN TAX ADVISORS THE FEDERAL, STATE, LOCAL AND
FOREIGN TAX CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AND THAT HE OR SHE IS RELYING SOLELY ON SUCH ADVISORS AND NOT ON ANY
STATEMENTS OR REPRESENTATIONS OF THE CORPORATION OR ANY OF ITS AGENTS. THE
EMPLOYEE UNDERSTANDS AND AGREES THAT HE OR SHE (AND NOT THE CORPORATION)
SHALL BE RESPONSIBLE FOR ANY TAX LIABILITY THAT MAY ARISE AS A RESULT OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
10) Miscellaneous.
a) The Corporation shall not be required (i) to transfer on its books any
shares of Stock of the Corporation which shall have been sold or
transferred in violation of any of the provisions set forth in this
Agreement, or (ii) to treat as owner of such
shares or to accord the right to vote as such owner or to pay dividends
to any transferee to whom such shares shall have been so transferred.
b) The parties agree to execute such further instruments and to take
such action as may reasonably be necessary to carry out the intent
of this Agreement.
c) Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon delivery to the Employee
at his or her address then on file with the Corporation.
d) Neither the Plan, the granting of this Restricted Shares Award, this
Restricted Shares Award Agreement nor any other action taken
pursuant to the Plan or this Restricted Shares Award Agreement shall
constitute or be evidence of any agreement or understanding, express
or implied, that the Employee has a right to continue to provide
services as an officer or employee of the Company or any Parent,
Subsidiary or affiliate of the Company for any period of time or at
any specific rate of compensation. Further, the Company may at any
time dismiss the Employee, free from any liability or any claim
under the Plan or this Restricted Shares Award Agreement, except as
otherwise expressly provided herein.
e) This Agreement and the Plan contain the entire understanding and
agreement of the parties concerning the subject matter hereof, and
supersede all earlier negotiations and understandings, whether
written or oral, between the parties with respect thereto. This
Agreement is made under and subject to the provisions of the Plan,
and all of the provisions of the Plan are hereby incorporated by
reference into this Agreement. In the event of any conflict between
the provisions of this Agreement and the provisions of the Plan, the
provisions of the Plan shall govern. By signing this Agreement, the
Employee confirms that he or she has received a copy of the Plan and
has had an opportunity to review the contents thereof.
f) Any dispute regarding the interpretation of this Agreement shall be
submitted by Employee or the Corporation to the Corporation's Board
of Directors for review. The resolution of such a dispute by the
Corporation's Board of Directors shall be final and binding on the
Corporation and the Employee.
g) This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware applicable to
agreements wholly to be executed and to be performed therein. If any
one or more of the provisions of this Agreement shall be held to be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
h) Any dispute, claim, controversy or claim arising out of, relating to
or in connection with this Agreement, or the breach, termination or
validity thereof, shall be brought exclusively in any Federal or
State court in the State of New York, County of New York. Both
parties hereto expressly and irrevocably submit
to the jurisdiction of said courts and irrevocably waive any
objection which either of them may now or hereafter have to the
laying of venue of any action, suit or proceeding arising out of or
relating to this Agreement brought in such courts, irrevocably waive
any claim that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum and further
irrevocably waive the right to object, with respect to such claim,
action, suit or proceeding brought in any such court, that such
court does not have jurisdiction over such party. The parties hereto
hereby irrevocably consent to the service of process by registered
mail, postage prepaid, or by personal service within or without the
State of New York. Nothing contained herein shall affect the right
to serve process in any manner permitted by law.
i) The Corporation may assign any of its rights under this Agreement.
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the Corporation. Subject to the
restrictions on transfer set forth herein, this Agreement shall be
binding upon the Employee and Employee's heirs, executors,
administrators, legal representatives, successors and assigns.
j) Employee hereby acknowledges receipt of a copy of this Agreement.
Employee has read and understands the terms and provisions thereof,
and accepts the Restricted Stock subject to all the terms and
conditions of this Agreement.
k) This Restricted Shares Award Agreement shall not be effective unless
Employee executes and delivers a Non-Compete, Non-Solicitation and
Confidentiality Agreement in the form attached as Exhibit 1.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be executed by
a duly authorized officer and the Employee has hereunto affixed his or her hand
the day and year first above written.
Global Signal Inc.
By: /s/ Wesley R. Edens
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Name: Wesley R. Edens
Title: Chairman of the Board
Employee
/s/ Steven G. Osgood
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Name: Steven G. Osgood
EXHIBIT A
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STOCK POWER
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FOR VALUE RECEIVED,
("Employee"), hereby sells, assigns, transfers and conveys unto
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shares of the Common Stock, par value $0.01 per share, of Global Signal Inc., a
Delaware corporation (the "Company"), standing in Employee's name on the books
of the Company represented by Certificate No.herewith, and do hereby irrevocably
constitute and appoint
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attorney to transfer the said stock on the books of the Company with full power
of substitution in the premises. The authority granted by this Stock Power shall
be limited (i) to the shares of Restricted Stock granted to Employee in
accordance with the Restricted Shares Award Agreement between the Company and
Employee, dated as of
--------------------------------, 2006, to which this
Stock Power is "Exhibit A" (the "Agreement") and (ii) to exercise solely
in the accordance with the provisions of the Agreement, including
Section 5 thereof.
By:
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Name: Dated:
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