INVESTOR SHAREHOLDER AGREEMENT (the Agreement), dated as of [__________], 2007, between Nomura Investment Managers U.S.A., Inc., a Delaware corporation (Initial Investor and, collectively with all other Persons (as defined herein) who become Investors in accordance with this Agreement, Investors), and Fortress Investment Group LLC, a Delaware limited liability company (Fortress).
WHEREAS, in connection with the IPO (as defined herein), Fortress and its Affiliates (as defined herein) intend to consummate the transactions described in the Registration Statement on Form S-1 filed with the Commission (as defined herein) on November 8, 2006 (Registration No. 333-138514) (the IPO Registration Statement);
WHEREAS, Initial Investor has entered into a securities purchase agreement (the Securities Purchase Agreement) with the Principals pursuant to which Initial Investor, prior to the consummation of the IPO, will acquire [___] Class A Shares (as defined herein); and
WHEREAS, Initial Investor and Fortress desire to address herein certain relationships among themselves with respect to the Class A Shares held by Initial Investor.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.1 DEFINITIONS. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Securities Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
ADVISERS ACT means the Investment Advisers Act of 1940, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder.
An AFFILIATE of any Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person. CONTROL means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
AGREEMENT has the meaning set forth in the recitals to this Agreement.
APPROVED SALE shall have the meaning set forth in Section 5.1(a).
A BENEFICIAL OWNER of a security is a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has or shares: (i) voting power, which includes the power to vote, or to direct the voting of, such security and/or (ii) investment power, which includes the power to dispose, or to direct the disposition of, such security. The terms BENEFICIALLY OWN and BENEFICIAL OWNERSHIP shall have correlative meanings.
BOARD means the board of directors of Fortress.
CLASS A SHARES means the Class A Shares of Fortress representing Class A limited liability company interests of Fortress and any equity securities issued or issuable in exchange for or with respect to such Class A Shares by way of a dividend, split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization.
CLASS B SHARES means the Class B Shares of Fortress representing Class B limited liability company interests of Fortress and any equity securities issued or issuable in exchange for or with respect to such Class B Shares by way of a dividend, split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization.
CODE shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
COMMISSION means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act.
DEMAND shall have the meaning set forth in Section 4.1(a).
DEMAND INVESTOR means an Investor that, together with its Permitted Transferees and their respective Permitted Transferees who are in each case Investors, holds at least a Registrable Amount.
DEMAND REGISTRATION has the meaning set forth in Section 4.1(a).
DISQUALIFIED PERSON has the meaning set forth in Section 2.1(c).
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder.
A reference to an EXCHANGE ACT RULE shall mean such rule or regulation of the SEC under the Exchange Act, as in effect from time to time or as replaced by a successor rule thereto.
FOG UNIT refers to a unit in the Fortress Operating Group, as described in the Private Placement Memorandum, which represents one limited partnership interest in each of the limited partnerships that comprise the Fortress Operating Group and any corresponding Class B Shares and any equity securities issued or issuable (including Class A Shares) in exchange for or with respect to such FOG Units or Class B Shares (x) by way of a dividend, split or combination of shares, (y) in connection with a reclassification, recapitalization, merger, consolidation or other reorganization, or (z) otherwise.
FORTRESS has the meaning set forth in the recitals to this Agreement.
FORTRESS OPERATING GROUP has the meaning set forth in the IPO Registration Statement.
GOVERNMENTAL ENTITY means any court, administrative agency, regulatory body, commission or other governmental authority, board, bureau or instrumentality, domestic or foreign and any subdivision thereof.
GROUP has the meaning set forth in Section 13(d) of the Exchange Act as in effect on the date of this Agreement.
INDEPENDENT DIRECTOR means a person who meets the independence criteria specified in the New York Stock Exchange Listed Company Manual Section 303A.02, as the same may be amended from time to time or as provided in any other similar New York Stock Exchange rule that replaces such rule.
INITIAL CLASS A SHARES means the Class A Shares purchased by Initial Investor pursuant to the Securities Purchase Agreement.
INITIAL INVESTOR has the meaning set forth in the recitals to this Agreement.
INSPECTORS shall have the meaning set forth in Section 4.5(a)(viii).
INVESTMENT COMPANY ACT means the Investment Company Act of 1940, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder
INVESTOR has the meaning set forth in the recitals to this Agreement.
IPO means the initial public offering of Class A Shares.
IPO REGISTRATION STATEMENT has the meaning set forth in the recitals of this Agreement.
LOSSES shall have the meaning set forth in Section 4.7(a).
NONQUALIFIED TRANSFEREE means any Person that the Board, in its good faith and reasonable judgment, determines should not be allowed to purchase Class A Shares from Initial Investor or its Permitted Transferees in a transaction exempt from the registration requirements of the Securities Act because such
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purchase could reasonably be expected to be materially detrimental to the business or prospects of Fortress.
OBSERVER shall have the meaning set forth in Section 2.1(c)(ii).
OPERATING AGREEMENT means the amended and restated limited liability company agreement of Fortress.
OTHER DEMANDING SELLERS shall have the meaning set forth in Section 4.2(b).
OTHER PROPOSED SELLERS shall have the meaning set forth in Section 4.2(b).
PERMITTED TRANSFEREE shall mean (i) with respect to Initial Investor, such Initial Investors Subsidiaries or Controlled Affiliates and (ii) with respect to each Principal, (a) such Principals spouse, (b) a lineal descendant of such Principals maternal or paternal grandparents (or any such descendants spouse), (c) a Charitable Institution (as defined below), (d) a trustee of a trust (whether inter vivos or testamentary), the current beneficiaries and presumptive remaindermen of which are one or more of such Principal and persons described in clauses (a) through (c) of this definition, (e) a corporation, limited liability company or partnership, of which all of the outstanding shares of capital stock or interests therein are owned by one or more of such Principal and Persons described in clauses (a) through (d) of this definition, (f) an individual mandated under a qualified domestic relations order and (g) a legal or personal representative of such Principal in the event of his death or Disability. For purpose of this definition: (i) lineal descendants shall not include individuals adopted after attaining the age of 18 years and such adopted Persons descendants; (ii) Charitable Institution shall refer to an organization described in section 501(c)(3) of the Code (or any corresponding provision of a future United State Internal Revenue law) which is exempt from income taxation under section 501(a) thereof; and (iii) presumptive remaindermen shall refer to those Persons entitled to a share of a trusts assets if it were then to terminate. DISABILITY shall refer to any physical or mental incapacity which, as determined by the Board, prevents a Principal from carrying out all or substantially all of his duties under his employment agreement with Fortress in such capacity for any period of 120 consecutive days or any aggregate period of six months in any 12-month period.
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PERSON means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, Governmental Entity or other entity.
PIGGYBACK INVESTOR shall have the meaning set forth in Section 4.2(a).
PIGGYBACK NOTICE shall have the meaning set forth in Section 4.2(a).
PIGGYBACK REGISTRABLE AMOUNT shall mean an amount of Shares representing at least 1% of the Total Voting Power of Fortress.
PIGGYBACK REGISTRATION shall have the meaning set forth in Section 4.2(a).
PIGGYBACK SELLER shall have the meaning set forth in Section 4.2(a).
PRINCIPALS means Peter L. Briger, Jr., Wesley R. Edens, Robert I. Kauffman, Randal A. Nardone and Michael E. Novogratz.
PROCEEDING shall have the meaning set forth in Section 8.12.
RECORDS shall have the meaning set forth in Section 4.5(a)(viii).
REGISTRABLE AMOUNT shall mean an amount of Shares representing at least 2.5% of the Total Voting Power of Fortress.
REGISTRABLE SECURITIES shall mean the Initial Class A Shares and any equity securities issued or issuable to any of the Investors with respect to the Initial Class A Shares by way of a dividend, split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (x) 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 or (y) such securities are sold in accordance with Rule 144 (or any successor provision) promulgated under the Securities Act.
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REGISTRATION RIGHTS means the rights described herein in Article IV.
REPRESENTATIVE means with respect to a particular Person, any director, officer, manager, employee, agent, consultant, advisor, accountant, financial advisor, legal counsel or other representative of that Person.
REQUESTING INVESTOR shall have the meaning set forth in Section 4.1(a).
SECURITIES ACT means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder.
SECURITIES PURCHASE AGREEMENT has the meaning set forth in the recitals to this Agreement.
SELECTED COURTS shall have the meaning set forth in Section 8.12.
SELLING INVESTORS shall have the meaning set forth in Section 4.5(a)(i).
SHARES means, collectively, the outstanding Class A Shares and Class B Shares (as equitably adjusted to reflect any split, combination, reorganization, recapitalization, reclassification or other similar event involving the Class A Shares and/or Class B Shares).
STOCK EQUIVALENTS means any security or obligation which is by its terms, whether directly or indirectly, convertible into or exchangeable or exercisable for Class A Shares, Class B Shares or other equity securities of the Fortress Entities, and any option, warrant or other subscription or purchase right with respect to Class A Shares, Class B Shares or other equity securities of any of the Fortress Entities.
SUBSIDIARIES means, with respect to any Person, as of any date of determination, any other Person as to which such Person, owns, directly or indirectly, or otherwise controls more than 50% of the voting shares or other similar interests or the sole general partner interest or managing member or similar interest of such Person.
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TAG-ALONG NOTICE shall have the meaning set forth in Section 5.2(b).
TAG-ALONG PRINCIPAL shall have the meaning set forth in Section 5.2(a).
TAG-ALONG PURCHASER shall have the meaning set forth in Section 5.2(a).
TAG-ALONG RIGHTSHOLDER shall have the meaning set forth in Section 5.2(a).
TAG-ALONG SHARES shall have the meaning set forth in Section 5.2(a).
TOTAL VOTING POWER OF FORTRESS means the total number of votes that may be cast in the election of directors of Fortress if all Voting Securities outstanding or treated as outstanding pursuant to the final two sentences of this definition were present and voted at a meeting held for such purpose. The percentage of the Total Voting Power of Fortress Beneficially Owned by any Person is the percentage of the Total Voting Power of Fortress that is represented by the total number of votes that may be cast in the election of directors of Fortress by Voting Securities Beneficially Owned by such Person. In calculating such percentage, the Voting Securities Beneficially Owned by any Person that are not outstanding but are subject to issuance upon exercise or exchange of rights of conversion or any options, warrants or other rights Beneficially Owned by such Person shall be deemed to be outstanding for the purpose of computing the percentage of the Total Voting Power of Fortress represented by Voting Securities Beneficially Owned by such Person, but shall not be deemed to be outstanding for the purpose of computing the percentage of the Total Voting Power of Fortress represented by Voting Securities Beneficially Owned by any other Person.
UNDERWRITTEN OFFERING shall mean a sale of securities of Fortress to an underwriter or underwriters for reoffering to the public.
VOTING SECURITIES means Class A Shares, Class B Shares and any other securities of Fortress or any Subsidiary of Fortress entitled to vote generally in the election of directors of Fortress.
SECTION 1.2 GENDER. For the purposes of this Agreement, the words he, his or himself shall be interpreted to include the masculine, feminine and corporate, other entity or trust form.
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ARTICLE II
GOVERNANCE RIGHTS
SECTION 2.1 INVESTOR BOARD REPRESENTATION.
(a) Nominees.
(i) (x) At any time prior to the consummation of the IPO, so long as Initial Investor and its Permitted Transferees have retained at least two-thirds of the number of the Initial Class A Shares held by Initial Investor as of the date hereof (as adjusted by any dividend, split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization), at the election of the Initial Investor, the Board shall nominate one individual designated by Initial Investor such that Initial Investor will have one designee on the Board, and (y) at any time after the consummation of the IPO, so long as Initial Investor and its Permitted Transferees Beneficially Own Voting Securities representing more than 10% of the Total Voting Power of Fortress, at the election of the Initial Investor, the Board shall nominate one individual designated by Initial Investor such that Initial Investor will have one designee on the Board;
(ii) In the event that any designee of Initial Investor under this Section 2.1 shall for any reason cease to serve as a member of the Board during his or her term of office, and Initial Investor has the right at such time to nominate one individual to serve on the Board pursuant to Section 2.1(a)(i), the resulting vacancy on the Board shall be filled by an individual designated by Initial Investor.
(iii) Notwithstanding anything to the contrary herein, Fortress shall not be required pursuant to this Section 2.1 to nominate or select any individual (a Disqualified Person) to serve as a member of the Board:
(A) whose appointment would cause Fortress or any its Affiliates registered under the Advisers Act as an
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investment adviser to provide (i) an affirmative answer to any question of Item 11 of Part I of Form ADV or (ii) any disclosure to investment advisory clients or prospective clients under Rule 206(4)-4 of the Advisers Act; or
(B) who has committed any act that would reasonably be expected to cause such individual, Fortress or any Fortress Subsidiary or any affiliated person (as defined in the Investment Company Act) of any of the foregoing to be disqualified in any manner under Section 9 of the Investment Company Act, or that would constitute grounds for the SEC to deny, revoke or suspend the registration of Fortress or any its affiliates registered under the Advisers Act as an investment adviser under Section 203(e) of the Advisers Act.
(b) Removal. Fortress shall be entitled to take all appropriate actions to remove any designee of Initial Investor on the Board at any time after such designee becomes a Disqualified Person, and Initial Investor shall take all actions reasonably requested by Fortress in connection with the foregoing.
(c) Waiver; Observer Rights.
(i) At any time as of the date hereof, upon 10 days prior written notice to Fortress, Initial Investor may, in its sole discretion, waive and relinquish its rights to designate a member of the Board pursuant to Section 2.1(a).
(ii) Upon the delivery of a waiver contemplated by Section 2.1(c)(i), the Initial Investor shall have the right to: (A) appoint a non-voting representative (the Observer) to attend meetings of the Board but not Board committee meetings, to change the Observer so appointed at any time and, upon the resignation of the Observer for any reason, to reappoint another Observer; (B) make proposals, recommendations and suggestions to Fortresss officers and directors relating to the business and affairs of Fortress at such reasonable times as may be requested by Initial Investor; (C) discuss Fortresss business and affairs with Fortresss officers, directors and independent accountants at such reasonable times as may be requested by Initial Investor. In addition, Fortress
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shall provide Initial Investor with copies of all written consents, resolutions, reports, or other written materials provided to the Board at the same time and in the same manner such materials are circulated to the Board (whether or not Initial Investor has elected to have an Observer pursuant to this Section 2.1(c)); provided that no Observer shall be entitled to receive any information without agreeing in writing to be a party to any confidentiality restrictions with respect to such information. Any action taken by the Board at any meeting will not be invalidated by the absence of the Observer at such meeting. Prior to any meeting of the Board, Fortress shall provide due notice of such meeting to the Observer in accordance with the Operating Agreement.
(iii) Initial Investor shall cease to have any rights under this Section 2.1(c) at the time Initial Investor ceases to have the right to nominate one individual to serve on the Board pursuant to Section 2.1(a).
SECTION 2.2 INSPECTION RIGHTS. Prior to the IPO, so long as Initial Investor and its Permitted Transferees Beneficially Own Voting Securities representing more than 5% of the Total Voting Power of Fortress:
(a) each of Fortress, each Fortress Subsidiary and each Fortress Fund will permit each Investor or a representative of each Investor, to visit and inspect any of the properties of such entity, including its books of account and other records and, at such entitys expense and subject to such Investors or representatives execution of a non-disclosure agreement in a form acceptable to such entity, make copies thereof and take extracts therefrom, and to discuss its affairs, finances and accounts with such entitys officers and its independent public accountants, all at such reasonable times and as often as any such Investor may reasonably request; provided that any records or copies provided shall be subject to any confidentiality restrictions with respect to such record or copies.
(b) each of Fortress, each Fortress Subsidiary and each Fortress Fund will deliver to each Investor, who so requests in writing, as soon as practicable after transmission or occurrence and in any event within ten (10) days thereof, copies of any reports or communications delivered to any class of such entitys security holders or investors, or broadly to the financial community, including any filings by such entity with any securities exchange, the Commission or
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the National Association of Securities Dealers, Inc.; provided, however, that no Investor shall be entitled to receive any information from a Fortress Fund without first agreeing in writing to be bound by any restrictions that are generally applicable to investors of such Fortress Fund with respect to such information;
(c) the provisions of this Section 2.2 shall not be in limitation of any rights which any Investor may have with respect to the books and records of the Fortress Entities, or to inspect their properties or discuss their affairs, finances and accounts, under the laws of the jurisdictions in which they are organized;
(d) the Company shall cooperate with the Investors to develop mutually agreeable financial information and reporting procedures to enable the Investors to comply on a timely basis with applicable requirements under law, accounting rules or other regulations with regard to the ownership of the Class A Shares by the Investors; provided that the above obligations of the Company to cooperate with, and provide information to, the Investors shall expire upon the consummation of the IPO; and
(e) each Investor acknowledges and agrees that any non-public information of Fortress or any of its Affiliates is confidential and, except as required by law or legal process or to enforce the terms of this Agreement, such Investor shall keep and retain in the strictest confidence and not disclose to any Person all confidential matters of Fortress or any of its Affiliates.
ARTICLE III
TERMINATION
SECTION 3.1 TERM. This Agreement shall automatically terminate upon the earlier of (a) January 1, 2025 or (b) the date that Initial Investor, together with its Permitted Transferees, no longer holds Shares representing at least the Piggyback Registrable Amount.
SECTION 3.2 SURVIVAL. If this Agreement is terminated pursuant to Section 3.1, this Agreement shall become void and of no further force and effect, except for the provisions set forth in Section 4.7 and Article VIII.
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ARTICLE IV
REGISTRATION RIGHTS
SECTION 4.1 DEMAND REGISTRATION.
(a) At any time after the six month anniversary of the IPO, any Investors that on the date a Demand (as hereinafter defined) is made constitute Demand Investors (the Requesting Investor) shall be entitled to make a written request of Fortress (a Demand) for registration under the Securities Act of an amount of Registrable Securities that, when taken together with the amounts of Registrable Securities requested to be registered under the Securities Act by such Requesting Investors Permitted Transferees who are then Investors in accordance with this Agreement, equals or is greater than the Registrable Amount (based on the number of Registrable Securities outstanding on the date such Demand is made) (a Demand Registration) and thereupon Fortress will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which Fortress has been so requested to register by the Requesting Investor for disposition in accordance with the intended method of disposition stated in such Demand;
(ii) all other Registrable Securities which Fortress has been requested to register pursuant to Section 4.1(b); and
(iii) all Shares which Fortress may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(g);
all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Shares, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Investor (or Requesting Investor). Subject to Section 4.1(g), Fortress shall include in the Demand Registration covered
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by such Demand all Registrable Securities with respect to which Fortress has received a written request for inclusion therein within ten days after Fortresss notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Initial Investor and its Permitted Transferees, collectively, shall be entitled to an aggregate of two Demand Registrations.
(d) 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 90 days (or such shorter period in which all Registrable Securities included in such Demand Registration have actually been sold thereunder), (ii) if, after it has become effective, such Demand Registration becomes subject prior to 90 days after effectiveness to any stop order, injunction or other order or requirement of the SEC or other Governmental Entity 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 by reason of any act or omission by such Requesting Investors.
(e) Demand Registrations shall be on such appropriate registration form of the SEC as shall be selected by the Requesting Investor and shall be reasonably acceptable to Fortress.
(f) Fortress 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 90 days or (ii) effect any Demand Registration (A) within six months of a firm commitment Underwritten Offering in which all Piggyback Investors (as hereinafter defined) were given piggyback rights pursuant to Section 4.2 (subject to Section 4.1(g)) and at least 50% of the number of Registrable Securities requested by such Piggyback Investor to be included in such Demand Registration were included, (B) within four months of any other Demand Registration or (C) if, in Fortresss reasonable judgment, it is not feasible for Fortress to proceed with the Demand Registration because of the unavailability of audited or other required financial statements, provided that Fortress shall use its reasonable best efforts to obtain such financial statements as promptly as practicable. In addition, Fortress shall be entitled to postpone (upon written notice to the Demand Investor) for up to two occasions, and in no event for more than an aggregate of 120 days, the filing or the effectiveness of a registration statement for any Demand
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Registration (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 Fortress has a bona fide business purpose for preserving as confidential. In the event of a postponement by Fortress of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Investors shall have the right to withdraw such Demand in accordance with Section 4.3.
(g) Fortress shall not include any securities other than Registrable Securities in a Demand Registration, except with respect to securities held by the Principals or with the written consent of Investors participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized independent investment bank selected by the Investors holding a majority of the Registrable Securities included in such Demand Registration, reasonably acceptable to Fortress, and whose fees and expenses shall be borne solely by Fortress) advises Fortress, in writing, that, in its opinion, the inclusion of all of the securities, including securities of Fortress that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then Fortress shall include in such registration statement only such securities as Fortress 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 Demand Registration by the Investors, which, in the opinion of the underwriter or investment bank can be sold without adversely affecting the marketability of the offering, pro rata among such Investors requesting such Demand Registration on the basis of the number of such securities requested to be included by such Investors and such Investors that are Piggyback Sellers; (ii) second, securities the Principals propose to sell; (iii) third, securities Fortress proposes to sell; and (iv) fourth, all other securities of Fortress duly requested to be included in such registration statement, pro rata on the basis of the amount of such other securities requested to be included or such other method determined by Fortress.
(h) Any time that a Demand Registration involves an Underwritten Offering, Fortress shall select the investment banker or investment
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bankers and managers that will serve as lead and co-managing underwriters with respect to the offering of such Registrable Securities.
(i) All rights of the Investors under this Section 4.1 shall be subject to the restrictions of Section 6.2.
SECTION 4.2 PIGGYBACK REGISTRATION.
(a) Subject to the terms and conditions hereof, whenever Fortress proposes to register any of its equity securities under the Securities Act (other than a registration by Fortress on a registration statement on Form S-4 or a registration statement on Form S-8 or any successor forms thereto) (a Piggyback Registration), whether for its own account or for the account of others, Fortress shall give each Investor that on such date, together with its Permitted Transferees who are then Investors in accordance with this Agreement, holds at least a Piggyback Registrable Amount (each, a Piggyback Investor), prompt written notice thereof (but not less than ten business days prior to the filing by Fortress with the SEC of any registration statement with respect thereto). Such notice (a Piggyback Notice) shall specify, at a minimum, the number of equity securities proposed to be registered, the proposed date of filing of such registration statement with the SEC, the proposed means of distribution, the proposed managing underwriter or underwriters (if any and if known) and a good faith estimate by Fortress of the proposed minimum offering price of such equity securities. Upon the written request of any Persons that on the date of the Piggyback Notice constitute a Piggyback Investor (a Piggyback Seller) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller) given within ten days after such Piggyback Notice is received by such Piggyback Seller, Fortress, 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 Fortress has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as Fortresss equity securities being sold in such Piggyback Registration.
(b) 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 Investors holding a majority of the Registrable Securities included in such Piggyback Registration, reasonably acceptable to Fortress, and whose fees and expenses shall be borne solely by Fortress) advises Fortress in writing that, in its opinion, the inclusion
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of all the equity securities sought to be included in such Piggyback Registration by (i) Fortress, (ii) others who have sought to have equity securities of Fortress 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 Fortress (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 Fortress shall include in the registration statement applicable to such Piggyback Registration only such equity securities as Fortress 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 Fortresss own account, then (A) first, such number of equity securities to be sold by Fortress as Fortress, in its reasonable judgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers, securities of Principals and securities sought to be registered by Other Demanding Sellers, pro rata on the basis of the number of Class A Shares proposed to be sold by such Piggyback Sellers, the Principals and Other Demanding Sellers and (C) third, other equity securities proposed to be sold by any Other Proposed Sellers (excluding the Principals); or
(ii) if the Piggyback Registration relates to an offering other than for Fortresss own account, then (A) first, such number of equity securities sought to be registered by each Other Demanding Seller, the Piggyback Sellers and the Principals, pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, Piggyback Sellers and the Principals and (B) second, other equity securities proposed to be sold by any Other Proposed Sellers (excluding the Principals) or to be sold by Fortress as determined by Fortress.
(c) In connection with any Underwritten Offering under this Section 4.2 for Fortresss account, Fortress shall not be required to include the Registrable Securities of an Investor in the Underwritten Offering unless the Investor accepts the terms of the underwriting as agreed upon between Fortress and the underwriters selected by Fortress.
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(d) If, at any time after giving written notice of its intention to register any of its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, Fortress shall determine for any reason not to register such equity securities, Fortress shall give written notice of such determination to each Piggyback Investor within five (5) days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that Demand Investors may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
(e) All rights of the Investor under this Section 4.2 shall be subject to the restrictions of Section 6.2.
SECTION 4.3 WITHDRAWAL RIGHTS.
Any Investor having notified or directed Fortress to include any or all of its Registrable Securities in a registration statement under the Securities Act shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to Fortress prior to the effective date of such registration statement. In the event of any such withdrawal, Fortress shall not include such Registrable Securities in the applicable registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement. No such withdrawal shall affect the obligations of Fortress with respect to the Registrable Securities not so withdrawn; provided, however, that in the case of a Demand Registration, if such withdrawal shall reduce the number of Registrable Securities sought to be included in such registration below the Registrable Amount, then Fortress shall as promptly as practicable give each Investor seeking to register Registrable Securities notice to such effect and, within ten days following the mailing of such notice, such Investor still seeking registration shall, by written notice to Fortress, elect to register additional Registrable Securities, when taken together with elections to register Registrable Securities by their Permitted Transferees, to satisfy the Registrable Amount or elect that such registration statement not be filed or, if theretofore filed, be withdrawn. During such ten day period, Fortress shall not file such registration statement if not theretofore filed or, if such registration statement has been theretofore filed, Fortress shall not seek, and shall use commercially reasonable efforts to prevent, the effectiveness thereof. Any
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registration statement withdrawn or not filed (a) in accordance with an election by Fortress, (b) in accordance with an election by the Requesting Investors in the case of a Demand Registration or (c) in accordance with an election by Fortress subsequent to the effectiveness of the applicable Demand Registration statement because any post-effective amendment or supplement to the applicable Demand Registration statement contains information regarding Fortress which Fortress deems adverse to Fortress, shall not be counted as a Demand. If an Investor withdraws its notification or direction to Fortress to include Registrable Securities in a registration statement in accordance with this Section 4.3, such Investor shall be required to promptly reimburse Fortress for all expenses incurred by Fortress in connection with preparing for the registration of such Registrable Securities.
SECTION 4.4 HOLDBACK AGREEMENTS.
Each Piggyback Seller agrees not to effect any public sale or distribution (including sales pursuant to Rule 144) of equity securities of Fortress, or any securities convertible into or exchangeable or exercisable for such equity securities, during any time period reasonably requested by Fortress (which shall not exceed 90 days) with respect to any Public Offering, Demand Registration or Piggyback Registration (in each case, except as part of such registration), or, in each case, during any time period (which shall not exceed 180 days) required by any underwriting agreement with respect thereto.
SECTION 4.5 REGISTRATION PROCEDURES.
(a) If and whenever Fortress is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 4.1 and 4.2 Fortress shall as expeditiously as reasonably possible:
(i) prepare and file with the SEC a registration statement to effect such registration and thereafter use reasonable best efforts to cause such registration statement to become and remain effective pursuant to the terms of this Agreement; provided, however, that Fortress may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, Fortress will furnish to the counsel selected by
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the Investors which are including Registrable Securities in such registration (Selling Investors) copies of all such documents proposed to be filed, which documents will be subject to the review of such counsel, and such review to be conducted with reasonable promptness;
(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 90 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 90 days after such registration statement becomes effective;
(iii) furnish to each Selling Investor and each underwriter, if any, of the securities being sold by such Selling Investor such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (as defined in Rule 405 of the Securities Act) (a Free Writing Prospectus) utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Selling Investor and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Investor;
(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration
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statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Investor and any underwriter of the securities being sold by such Selling Investor shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Investor and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Investor, except that Fortress shall not for any such purpose be required to (A) qualify generally to do business as a foreign limited liability company in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by Fortress are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Investor(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Investor and underwriter:
(A) an opinion of counsel for Fortress, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Investor and underwriters, and
(B) a comfort letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a comfort letter specified in Statement on Auditing Standards No.
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72, an agreed upon procedures letter) signed by the independent public accountants who have certified Fortresss financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Investor, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Investor or underwriter (collectively, the Inspectors), all financial and other records, pertinent corporate documents and properties of Fortress (collectively, the Records), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause Fortresss officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, Fortress shall not be required to provide any information under this subparagraph (viii) if (i) Fortress believes, after consultation with counsel for Fortress, that to do so would cause Fortress to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) Fortress has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) Fortress reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Selling Investor requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to Fortress; and provided, further, that each Selling Investor agrees that it will, upon learning that disclosure of such Records by such Selling Investor is sought in a court of competent jurisdiction, give notice to Fortress and allow Fortress, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Investor and the underwriters, if any, of the following events:
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(A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Governmental Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(D) the receipt by Fortress of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Investor, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Investor, promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an 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 not misleading;
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(xi) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Investors, as soon as reasonably practicable, an earnings statement of Fortress covering the period of at least 12 months, but not more than 18 months, beginning with the first day of Fortresss first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Selling Investors who made a request to Fortress to provide for a third party market maker for the Class A Shares; provided, however, that Fortress shall not be required to serve as such market maker;
(xiv) cooperate with the Selling Investors and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Investor may request and keep available and make available to Fortresss transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) have appropriate officers of Fortress prepare and make presentations at any road shows and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Investors and the underwriters in the offering, marketing or selling of the Registrable Securities.
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Fortress may require each Selling Investor and each underwriter, if any, to furnish Fortress in writing such information regarding each Selling Investor or underwriter and the distribution of such Registrable Securities as Fortress may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Underwriting. Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to be made by or through an underwriter, Fortress, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of Fortress contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers.
(c) Each Selling Investor agrees that upon receipt of any notice from Fortress of the happening of any event of the kind described in Section 4.5(a)(ix), such Selling Investor shall forthwith discontinue such Selling Investors disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Investors receipt of the copies of the supplemented or amended prospectus contemplated by Section 4.5(a)(ix) and, if so directed by Fortress, deliver to Fortress, at Fortresss expense, all copies, other than permanent file copies, then in such Selling Investors possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event Fortress shall give such notice, any applicable 90 day or one year period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 4.5(a)(ix) to the date when all such Selling Investors shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.
SECTION 4.6 REGISTRATION EXPENSES.
All expenses incident to Fortresss performance of, or compliance with, its obligations under this Agreement including, without limitation, all registration and filing fees, all fees and expenses of compliance with securities and blue sky laws, all fees and expenses associated with filings required to be made
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with the NASD (including, if applicable, the fees and expenses of any qualified independent underwriter as such term is defined in Schedule E of the By-Laws of the NASD), all fees and expenses of compliance with securities and blue sky laws, all printing (including, without limitation, expenses of printing certificates for the Registrable Securities in a form eligible for deposit with the Depository Trust Company and of printing prospectuses if the printing of prospectuses is requested by a holder of Registrable Securities) and copying expenses, all messenger and delivery expenses, all fees and expenses of Fortresss independent certified public accountants and counsel (including, without limitation, with respect to comfort letters and opinions) and fees and expenses of one firm of counsel to the Investors selling in such registration (which firm shall be selected by the Investors selling in such registration that hold a majority of the Registrable Securities included in such registration) (collectively, the Registration Expenses) shall be borne by Fortress, regardless of whether a registration is effected. Fortress will pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties, the expense of any annual audit and the expense of any liability insurance) and the expenses and fees for listing the securities to be registered on each securities exchange and included in each established over-the-counter market on which similar securities issued by Fortress are then listed or traded. Each Selling Investor shall pay its portion of all underwriting discounts and commissions and transfer taxes, if any, relating to the sale of such Selling Investors Registrable Securities pursuant to any registration.
SECTION 4.7 INDEMNIFICATION.
(a) By Fortress. Fortress agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Selling Investor and its Permitted Transferees and their respective officers, directors, employees, managers, partners and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such Selling Investor or such other indemnified Person from and against all losses, claims, damages, liabilities and expenses (including reasonable expenses of investigation and reasonable attorneys fees and expenses) (collectively, the Losses) caused by, resulting from or relating to any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus or preliminary prospectus or Free Writing Prospectus or any amendment or supplement thereto or any omission (or alleged omission) of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as the same are caused by any
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information furnished in writing to Fortress by such Selling Investor expressly for use therein. In connection with an Underwritten Offering and without limiting any of Fortresss other obligations under this Agreement, Fortress shall also indemnify such underwriters, their officers, directors, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such underwriters or such other indemnified Person to the same extent as provided above with respect to the indemnification (and exceptions thereto) of Selling Investors. Reimbursements payable pursuant to the indemnification contemplated by this Section 4.7(a) will be made by periodic payments during the course of any investigation or defense, as and when bills are received or expenses incurred.
(b) By the Selling Investors. In connection with any registration statement in which an Investor is participating, such Selling Investor will furnish to Fortress in writing information regarding such Selling Investors ownership of Registrable Securities and its intended method of distribution thereof and, to the extent permitted by law, shall, jointly with Initial Investor and all other Investors and not severally, indemnify Fortress, its Affiliates and their respective directors, officers, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) Fortress or such other indemnified Person against all Losses caused by any untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or Free Writing Prospectus or any amendment or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statement or omission is caused by and contained in such information so furnished in writing by such Selling Investor expressly for use therein. Notwithstanding the foregoing, no Selling Investors shall be liable to Fortress for amounts in excess of the net amount received by such holder in the offering giving rise to such liability.
(c) Notice. Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, however, the failure to give such notice shall not release the indemnifying party from its obligation, except to the extent that the indemnifying party has been materially prejudiced by such failure to provide such notice on a timely basis.
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(d) Defense of Actions. In any case in which any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not (so long as it shall continue to have the right to defend, contest, litigate and settle the matter in question in accordance with this paragraph) be liable to such indemnified party hereunder for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, supervision and monitoring (unless (i) such indemnified party reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to the defenses available to such indemnifying party or (ii) the indemnifying party shall have failed within a reasonable period of time to assume such defense and the indemnified party is or is reasonably likely to be prejudiced by such delay, in either event the indemnified party shall be promptly reimbursed by the indemnifying party for the expenses incurred in connection with retaining separate legal counsel). An indemnifying party shall not be liable for any settlement of an action or claim effected without its consent (such consent not to be unreasonably withheld). The indemnifying party shall lose its right to defend, contest, litigate and settle a matter if it shall fail to diligently contest such matter (except to the extent settled in accordance with the next following sentence). No matter shall be settled by an indemnifying party without the consent of the indemnified party (which consent shall not be unreasonably withheld, it being understood that the indemnified party shall not be deemed to be unreasonable in withholding its consent if the proposed settlement imposes any obligation on the indemnified party).
(e) Survival. The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person and will survive the transfer of the Registrable Securities and the termination of this Agreement.
(f) Contribution. If recovery is not available under the foregoing indemnification provisions for any reason or reasons other than as specified therein, any Person who would otherwise be entitled to indemnification by the terms thereof shall nevertheless be entitled to contribution with respect to any Losses with respect to which such Person would be entitled to such indemnification
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but for such reason or reasons. In determining the amount of contribution to which the respective Persons are entitled, there shall be considered the Persons relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and other equitable considerations appropriate under the circumstances. It is hereby agreed that it would not necessarily be equitable if the amount of such contribution were determined by pro rata or per capita allocation. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. Notwithstanding the foregoing, no Selling Investor or transferee thereof shall be required to make a contribution in excess of the net amount received by such holder from its sale of Registrable Securities in connection with the offering that gave rise to the contribution obligation.
(g) Request for Information. Not less than ten business days before the expected filing date of each registration statement pursuant to this Agreement, Fortress shall notify each Investor who has timely provided the requisite notice hereunder entitling the Investor to register Registrable Securities in such registration statement of the information, documents and instruments from such Investor that Fortress or any underwriter reasonably requests in connection with such registration statement, including, but not limited to a questionnaire, custody agreement, power of attorney, lock-up letter and underwriting agreement (the Requested Information). If Fortress has not received, on or before the second day before the expected filing date, the Requested Information from such Investor, Fortress may file the Registration Statement without including Registrable Securities of such Investor. The failure to so include in any registration statement the Registrable Securities of an Investor (with regard to that registration statement) shall not in and of itself result in any liability on the part of Fortress to such Investor.
(h) No Grant of Future Registration Rights. Fortress shall not grant any shelf, demand, piggyback or incidental registration rights that are senior to the rights granted to the Investors hereunder to any other Person without the prior written consent of Initial Investor.
(i) Permitted Transferees. Any time an Investor transfers Registrable Securities to a Permitted Transferee of Initial Investor, such Permitted Transferee must execute a joinder to this Agreement, and become an Investor for purposes of this Agreement, in order to be entitled to the registration rights set forth in this Article IV.