REGISTRATION RIGHTS AGREEMENT
Exhibit 10.1
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the 12
day of December 2007, by and among Liberty Acquisition Holdings Corp., a Delaware corporation (the
“Company”), and the undersigned parties listed under Investor on the signature page hereto
(each, an “Investor” and collectively, the “Investors”).
WHEREAS, the Investors currently hold all of the issued and outstanding securities of the
Company; and
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of shares of Common Stock held by them.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have the following
meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise
modified from time to time.
“Co-Investment Common Stock” means the 6,000,000 shares of Common Stock to be issued
as part of the Co-Investment Units to certain Investors.
“Co-Investment Units” means the 6,000,000 units of the Company to be issued to
certain Investors pursuant to the Amended and Restated Sponsors’ Warrants and Co-Investment Units
Subscription Agreement, dated as of December 6, 2007, between the Company and such Investors
immediately prior to the consummation by the Company of a merger, stock exchange, asset
acquisition, reorganization or similar business combination with an operating business.
“Co-Investment Warrants” means the 3,000,000 warrants of the Company to purchase
shares of Common Stock to be issued as part of the Co-Investment Units to certain Investors
(including the underlying shares of Common Stock).
“Commission” means the United States Securities and Exchange Commission, or any other
federal agency then administering the Securities Act or the Exchange Act.
“Common Stock” means the common stock, par value $0.0001 per share, of the Company.
“Company” is defined in the preamble to this Agreement.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
“Form S-3” is defined in Section 2.3.
“Founders’ Common Stock” means the 25,875,500 shares of Common Stock issued as part
of the Founders’ Units to the Investors (or such lesser number of shares that the Investors may
hold if the Underwriters’ over-allotment option is not exercised in full by the Underwriters).
“Founders’ Units” means the 25,875,000 units of the Company issued to the Investors
pursuant to the Founders’ Units Subscription Agreements, each dated as of August 9, 2007, between
the Company and each of the Investors (or such lesser number of units that the Investors may hold
if the Underwriters’ over-allotment option is not exercised in full by the Underwriters).
“Founders’ Warrants” means the 12,937,500 warrants of the Company to purchase shares
of Common Stock issued as part of the Founders’ Units to the Investors (including the underlying
shares of Common Stock) (or such lesser number of warrants that the Investors may hold if the
Underwriters’ over-allotment option is not exercised in full by the Underwriters).
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Investor” is defined in the preamble to this
Agreement.
“Investor Indemnified Party” is defined
in Section 4.1.
“Maximum Threshold” is defined in
Section 2.1.4.
“Notices” is defined in Section
6.3.
“Piggy-Back Registration” is defined in
Section 2.2.1.
“Pro Rata” is defined in Section
2.1.4.
“Register,” “Registered” and “Registration” mean a registration
effected by preparing and filing a Registration Statement or similar document in compliance with
the requirements of the Securities Act, and the applicable rules and regulations promulgated
thereunder, and such Registration Statement becoming effective.
“Registrable Securities” mean, collectively, the Registrable Units, Registrable
Shares and Registrable Warrants. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and such securities
shall have been sold, transferred, disposed of or exchanged
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in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration under the Securities Act; (c) such securities
shall have ceased to be outstanding, or (d) the Commission makes a definitive determination to the
Company that the Registrable Securities are salable under Rule 144(k).
“Registrable Shares” mean (i) the Founders’ Shares underlying the Founders’ Units and
(ii) the Co-Investment Shares underlying the Co-Investment Units. Registrable Shares include any
shares of capital stock or other securities of the Company issued as a dividend or other
distribution with respect to or in exchange for or in replacement of such shares of Common Stock.
“Registrable Units” mean all of the Founders’ Units owned or held by Investors, each
consisting of (i) one share of Common Stock and (ii) one-half (1/2) of one warrant to purchase one
share of Common Stock.
“Registrable Warrants” mean (i) the Founders’ Warrants underlying the Founders’ Units,
including the underlying shares of Common Stock underlying the Founders’ Warrants, (ii) the
Sponsors’ Warrants, including the underlying shares of Common Stock underlying the Sponsors’
Warrants and (iii) the Co-Investment Warrants underlying the Co-Investment Units, including the
underlying shares of Common Stock underlying the Co-Investment Warrants.
“Registration Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations promulgated
thereunder for a public offering and sale of Registrable Securities (other than a registration
statement on Form S-4 or Form S-8, or their successors, or any registration statement covering
only securities proposed to be issued in exchange for securities or assets of another entity).
“Release Date” means the first anniversary date of the completion by the Company of a
business combination.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Sponsors’ Warrants” mean the 12,000,000 warrants of the Company issued to certain
Investors pursuant to the Amended and Restated Sponsors’ Warrants and Co-Investment Units
Subscription Agreements, dated as of December 6, 2007, between the Company and such Investors
(including the underlying shares of Common Stock).
“Underwriter” means a securities dealer who purchases any Registrable Securities as
principal in an underwritten offering and not as part of such dealer’s market-making activities.
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| 2. | REGISTRATION RIGHTS. |
2.1 Demand Registration.
2.1.1. Request for Registration. At any time on or after the date that is
three months prior to the Release Date with respect to all Registrable Securities, the holders
of a majority-in-interest of such Registrable Securities, held by the Investors or the transferees
of the Investors, may make a written demand for Registration under the Securities Act of all or part
of their Registrable Securities (a “Demand Registration”). Any demand for a Demand
Registration shall specify the number of shares of Registrable Securities proposed to be sold and the
intended method(s) of distribution thereof. The Company will notify all holders of Registrable
Securities of the demand, and each holder of Registrable Securities who wishes to include all or a
portion of such holder’s Registrable Securities in the Demand Registration (each such holder including
shares of Registrable Securities in such Registration, a “Demanding Holder”) shall so
notify the Company within fifteen (15) days after the receipt by the holder of the notice from the
Company. Upon receipt by the Company of any such notice, the Demanding Holders shall be entitled to
have their Registrable Securities included in the Demand Registration, subject to Section
2.1.4 and the provisos set forth in Section 3.1.1. The Company shall not be obligated to effect more
than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in respect of all Registrable Securities.
2.1.2. Effective Registration. A Registration will not count as a Demand
Registration until the Registration Statement filed with the Commission with respect to such
Demand Registration has been declared effective and the Company has complied with all of its
obligations under this Agreement with respect thereto; provided, however, that if,
after such Registration Statement has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration is interfered with by any stop order or injunction of the
Commission or any other governmental agency or court, the Registration Statement with respect
to such Demand Registration will be deemed not to have been declared effective, unless and
until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and
(ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering;
provided, further, that the Company shall not be obligated to file a second Registration Statement until
a Registration Statement that has been filed is counted as a Demand Registration or is
terminated.
2.1.3. Underwritten Offering. If a majority-in-interest of the Demanding
Holders so elect and such holders so advise the Company as part of their written demand for a
Demand Registration, the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of an underwritten offering. In such event, the right of any
holder to include its Registrable Securities in such Registration shall be conditioned upon
such holder’s participation in such underwriting and the inclusion of such holder’s Registrable
Securities in the underwriting to the extent provided herein. All Demanding Holders proposing
to distribute their securities through such underwriting shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest of the holders initiating the Demand Registration.
2.1.4. Reduction of Offering. If the managing Underwriter or Underwriters for a
Demand Registration that is to be an underwritten offering advises the Company and the Demanding
Holders in writing that the dollar amount or number of shares of Registrable Securities which the
Demanding Holders desire to sell, taken together with all other shares of Common Stock or other
securities which the Company desires to sell and the shares of Common Stock, if any, as to which
Registration has been requested pursuant to written
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contractual piggy-back registration rights held by other stockholders of the Company who desire to
sell, exceeds the maximum dollar amount or maximum number of shares that the Company believes can
be sold in such offering without adversely affecting the proposed offering price, the timing, the
distribution method, or the probability of success of such offering (such maximum dollar amount or
maximum number of shares, as applicable, the “Maximum Threshold”), then the Company shall
include in such Registration: (i) first, the Registrable Securities as to which Demand
Registration has been requested by the Demanding Holders (pro rata in accordance with the number
of shares that each such Person has requested be included in such Registration, regardless of the
number of shares held by each such Person (such proportion is referred to herein as “Pro
Rata”)) that can be sold without exceeding the Maximum Threshold; (ii) second, to the extent
that the Maximum Threshold has not been reached under the foregoing clause (i), the shares of
Common Stock or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Threshold; and (iii) third, to the extent that the Maximum Threshold has not
been reached under the foregoing clauses (i), and (ii), the shares of Common Stock or other
securities for the account of other persons that the Company is obligated to register pursuant to
written contractual arrangements with such persons and that can be sold without exceeding the
Maximum Threshold.
2.1.5. Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of
the terms of any underwriting or are not entitled to include all of their Registrable Securities in
any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter (or Underwriters) of their
request to withdraw prior to the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding
Holders withdraws from a proposed offering relating to a Demand Registration, then the Company
shall withdrawal the Registration Statement related to such offering with regards to all such
Demanding Holders and such Registration shall not count as a Demand Registration provided for in
Section 2.1.
2.2 Piggy-Back Registration.
2.2.1. Piggy-Back Rights. If at any time on or after the Release Date, the Company
proposes to file a Registration Statement under the Securities Act with respect to an offering of
equity securities, or securities or other obligations exercisable or exchangeable for, or
convertible into, equity securities, by the Company for its own account or for stockholders of the
Company for their account (or by the Company and by stockholders of the Company including, without
limitation, pursuant to Section 2.1), other than a Registration Statement (i) filed in connection
with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of
securities solely to the Company’s existing stockholders or debtholders, (iii) for an offering of
debt that is convertible into equity securities of the Company, (iv) for a dividend reinvestment
plan, or (v) for the acquisition or purchase by or combination by merger or otherwise of the
Company of or with another company or business entity or partnership, then the Company shall (x)
give written notice of such proposed filing to the holders of Registrable Securities as soon as
practicable but in no event less than ten (10) days before the anticipated filing date, which
notice shall describe the amount and type of securities to be included in such offering, the
intended method(s) of distribution, and the name of the proposed managing Underwriter or
Underwriters, if any, of the offering, and (y) offer to the holders of Registrable
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Securities in such notice the opportunity to register the sale of such number of shares of
Registrable Securities as such holders may request in writing within five (5) days following
receipt of such notice (a “Piggy-Back Registration”). The Company shall cause such
Registrable Securities to be included in such Registration and shall use its best efforts to cause
the managing Underwriter or Underwriters of a proposed underwritten offering to permit the
Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and
conditions as any similar securities of the Company and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method(s) of distribution thereof. All
holders of Registrable Securities proposing to distribute their securities through a Piggy-Back
Registration that involves an Underwriter or Underwriters shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
2.2.2. Reduction of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders
of Registrable Securities in writing that the dollar amount or number of securities which the
Company desires to sell, taken together with securities, if any, as to which Registration has been
demanded pursuant to written contractual arrangements with persons other than the holders of
Registrable Securities hereunder, the Registrable Securities as to which Registration has been
requested under this Section 2.2, and the securities, if any, as to which Registration has been
requested pursuant to the written contractual piggy-back registration rights of other stockholders
of the Company, exceeds the Maximum Threshold, then the Company shall include in any such
Registration:
| a) | If the Registration is undertaken for the Company’s account: (A) first, the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Threshold; (B) second, to the extent that the Maximum Threshold has not been reached under the foregoing clause (A), the shares of Common Stock or other securities, if any, comprised of Registrable Securities, as to which Registration has been requested pursuant to the applicable written contractual piggy-back registration rights of such security holders, Pro Rata, that can be sold without exceeding the Maximum Threshold; and (C) third, to the extent that the Maximum Number of shares has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Threshold; | ||
| b) | If the Registration is a demand Registration, (A) first, the Registrable Securities for the account of the demanding persons, Pro Rata, that can be sold without exceeding the Maximum Threshold; (B) second, to the extent that the Maximum Threshold has not been reached under the foregoing clause (A), the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Threshold; (C) third, to the extent that the Maximum Threshold has not been reached under the foregoing clauses (A) and (B), the shares of Registrable Securities, Pro Rata, as to which Registration has been requested pursuant to the terms hereof, that can be sold |
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| without exceeding the Maximum Threshold; and (D) fourth, to the extent that the Maximum Threshold has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Threshold; and | |||
| c) | If the Registration is a “demand” Registration undertaken at the demand of persons other than the holders of Registrable Securities, (A) first, the shares of Common Stock or other securities for the account of the demanding persons that can be sold without exceeding the Maximum Threshold; (B) second, to the extent that the Maximum Threshold has not been reached under the foregoing clause (A), the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Threshold; (C) third, to the extent that the Maximum Threshold has not been reached under the foregoing clauses (A) and (B), collectively the shares of Common Stock or other securities comprised of Registrable Securities, Pro Rata, as to which Registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Threshold; and (D) fourth, to the extent that the Maximum Threshold has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Threshold. |
2.2.3. Withdrawal. Any holder of Registrable Securities may elect to withdraw such
holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company (whether on its own determination or as the result of a
withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a
Registration Statement at any time prior to the effectiveness of the Registration Statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of
Registrable Securities in connection with such Piggy-Back Registration as provided in Section 3.3.
2.3 Registrations on Form S-3. The holders of Registrable Securities may at any time
and from time to time, request in writing that the Company register the resale of any or all of
such Registrable Securities on Form S-3 or any similar short-form Registration which may be
available at such time (“Form S-3”); provided, however, that the Company shall not be
obligated to effect such request through an underwritten offering. Upon receipt of such written
request, the Company will promptly give written notice of the proposed Registration to all other
holders of Registrable Securities, and, as soon as practicable thereafter, effect the Registration
of all or such portion of such holder’s or holders’ Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities or other securities of the
Company, if any, of any other holder or holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect any such
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Registration pursuant to this Section 2.3: (i) if Form S-3 is not available for such offering; or
(ii) if the holders of the Registrable Securities, together with the holders of any other
securities of the Company entitled to inclusion in such Registration, propose to sell Registrable
Securities and such other securities (if any) at any aggregate price to the public of less than
$500,000. Registrations effected pursuant to this Section 2.3 shall not be counted as a Demand
Registration effected pursuant to Section 2.1.
3. REGISTRATION; PROCEDURES.
3.1. Filings; Information. Whenever the Company is required to effect the
Registration of any Registrable Securities pursuant to Section 2, the Company shall use its best
efforts to effect the Registration and sale of such Registrable Securities in accordance with the
intended method(s) of distribution thereof as promptly as practicable, and in connection with any
such request:
3.1.1. Filing Registration Statement. The Company shall, as promptly as
practicable (and in any event within seventy-five (75) days) after receipt of a request for a
Demand Registration pursuant to Section 2.1 prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be available for the sale of all
Registrable Securities to be registered thereunder in accordance with the intended method(s) of
distribution thereof, and shall use its best efforts to cause such Registration Statement to
become and remain effective for the period required by Section 3.1.3; provided, however, that the
Company shall have the right to defer any Demand Registration for up to thirty (30) days, and
any Piggy-Back Registration for such period as may be applicable to deferment of any
Registration to which such Piggy-Back Registration related, in each case, if the Company shall
furnish to the holders a certificate signed by the President of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it would be materially
detrimental to the Company and its stockholders for such Registration Statement to be effected at
such time; provided further, that the Company shall not be obligated to deliver securities and
shall not have penalties for failure to deliver securities, if a Registration Statement is not
effective at the time of exercise by the holder.
3.1.2. Copies. The Company shall, prior to filing a Registration
Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the
holders of Registrable Securities included in such Registration, and such holders’ legal
counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement
to such Registration Statement (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such Registration Statement
(including each preliminary prospectus), and such other documents as the holders of
Registrable Securities included in such Registration or legal counsel
for any such holders may request in order to facilitate the disposition of the Registrable Securities owned by such holders.
3.1.3. Amendments and Supplements. The Company shall prepare and
file with the Commission such amendments, including post-effective 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 in compliance with the
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provisions of the Securities Act until all Registrable Securities and other securities covered by
such Registration Statement have been disposed of in accordance with the intended method(s) of
distribution set forth in such Registration Statement (which period shall not exceed the sum of one
hundred eighty (180) days plus any period during which any such disposition is interfered with by
any stop order or injunction of the Commission or any governmental agency or court) or such
securities have been withdrawn.
3.1.4. Notification. After the filing of a Registration Statement, the
Company shall promptly, and in no event more than two (2) business days after such filing,
notify the holders of Registrable Securities included in such Registration Statement of such
filing, and shall further notify such holders promptly and confirm such advice in writing in
all events within two (2) business days of the occurrence of any of the following: (i) when such
Registration Statement becomes effective; (ii) when any post-effective amendment to such
Registration Statement becomes effective; (iii) the issuance or threatened issuance by the
Commission of any stop order (and the Company shall take all actions required to prevent the
entry of such stop order or to remove it if entered); and (iv) any request by the Commission
for any amendment or supplement to such Registration Statement or any
prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers
of the securities covered by such Registration Statement, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and promptly make available to the
holders of Registrable Securities included in such Registration Statement any such supplement
or amendment; except that before filing with the Commission a Registration Statement or
prospectus or any amendment or supplement thereto, including documents incorporated by
reference, the Company shall furnish to the holders of Registrable Securities included in such
Registration Statement and to the legal counsel for any such holders, copies of all such
documents proposed to be filed sufficiently in advance of filing to provide such holders and
legal counsel with a reasonable opportunity to review such documents and comment thereon, and the
Company shall not file any Registration Statement or prospectus or amendment or supplement
thereto, including documents incorporated by reference, to which such holders or their legal
counsel shall reasonably object.
3.1.5. State Securities Laws Compliance. The Company shall use its best
efforts to (i) register or qualify the Registrable Securities covered by the Registration
Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the
holders of Registrable Securities included in such Registration Statement (in light of their intended
plan of distribution) may request and (ii) take such action necessary to cause such Registrable
Securities covered by the Registration Statement to be registered with or approved by such
other Governmental Authorities as may be necessary by virtue of the business and operations of the
Company and do any and all other acts and things that may be necessary or advisable to enable
the holders of Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions; provided, however, that the
Company shall not be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph or subject itself to
taxation in any such jurisdiction.
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3.1.6. Agreements for Disposition. The Company shall enter into
customary agreements (including, if applicable, an underwriting agreement in customary form)
and take such other actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities. The representations, warranties and covenants of
the Company in any underwriting agreement which are made to or for the benefit of any
Underwriters, to the extent applicable, shall also be made to and for the benefit of the
holders of Registrable Securities included in such Registration Statement. No holder of Registrable
Securities included in such Registration Statement shall be required to make any
representations or warranties in the underwriting agreement except, if applicable, with respect to such
holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of
such sale with such holder’s material agreements and organizational documents, and with respect to
written information relating to such holder that such holder has furnished in writing
expressly for inclusion in such Registration Statement.
3.1.7. Cooperation. The principal executive officer of the Company, the
principal financial officer of the Company, the principal accounting officer of the Company
and all other officers and members of the management of the Company shall cooperate fully in any
offering of Registrable Securities hereunder, which cooperation shall include, without
limitation, the preparation of the Registration Statement with respect to such offering and all other
offering materials and related documents, and participation in meetings with Underwriters, attorneys,
accountants and potential investors.
3.1.8. Records. The Company shall make available for inspection by the
holders of Registrable Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such Registration Statement and any attorney,
accountant or other professional retained by any holder of Registrable Securities included in
such Registration Statement or any Underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, as shall be necessary to enable them to exercise
their due diligence responsibility, and cause the Company’s officers, directors and employees to
supply all information requested by any of them in connection with such Registration
Statement.
3.1.9. Opinions and Comfort Letters. The Company shall furnish to each
holder of Registrable Securities included in any Registration Statement a signed counterpart,
addressed to such holder, of (i) any opinion of counsel to the Company delivered to any
Underwriter and (ii) any comfort letter from the Company’s independent public accountants
delivered to any Underwriter. In the event no legal opinion is delivered to any Underwriter,
the Company shall furnish to each holder of Registrable Securities included in such Registration
Statement, at any time that such holder elects to use a prospectus, an opinion of counsel to
the Company (based solely on the oral advice of the Commission) to the effect that the
Registration Statement containing such prospectus has been declared effective and that no stop order is in
effect.
3.1.10. Earnings Statement. The Company shall comply with all
applicable rules and regulations of the Commission and the Securities Act, and make available
to its stockholders, as soon as practicable, an earnings statement covering a period of twelve
(12) months, beginning within three (3) months after the effective date of the Registration
Statement, which earnings statement shall satisfy the provisions of Section 11 (a) of the Securities Act and
Rule 158 thereunder.
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3.1.11. Listing. The Company shall use its best efforts to cause all Registrable
Securities included in any Registration to be listed on such exchanges or otherwise designated for
trading in the same manner as similar securities issued by the Company are then listed or
designated or, if no such similar securities are then listed or designated, in a manner
satisfactory to the holders of a majority of the Registrable Securities included in such
Registration.
3.2. Obligation to Suspend Distribution. Upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3.1.4(iv), or, in the
case of a resale registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by
the Company, pursuant to a written xxxxxxx xxxxxxx compliance program adopted by the Company’s
Board of Directors, of the ability of all “insiders” covered by such program to transact in
the Company’s securities because of the existence of material non-public information, each holder
of Registrable Securities included in any Registration shall immediately discontinue disposition
of such Registrable Securities pursuant to the Registration Statement covering such Registrable
Securities until such holder receives the supplemented or amended prospectus contemplated by
Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s
securities is removed, as applicable, and, if so directed by the Company, each such holder
will deliver to the Company all copies, other than permanent file copies then in such holder’s
possession, of the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice.
3.3. Registration Expenses. The Company shall bear all costs and expenses
incurred in connection with any Registration under this Agreement, and all expenses incurred
in performing or complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all registration
and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws
(including fees and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including, without
limitation, all salaries and expenses of its officers and employees); (v) the fees and
expenses incurred in connection with the listing of the Registrable Securities as required by Section
3.1.11; (vi) National Association of Securities Dealers, Inc. fees; (vii) fees and disbursements of
counsel for the Company and fees and expenses for independent certified public accountants retained by
the Company (including the expenses or costs associated with the delivery of any opinions or
comfort letters requested pursuant to Section 3.1.9); (viii) the fees and expenses of any
special
experts retained by the Company in connection with such Registration and (ix) the fees and
expenses of one legal counsel selected by the holders of a majority-in-interest of the
Registrable
Securities included in such Registration. The Company shall have no obligation to pay any
underwriting discounts or selling commissions attributable to the Registrable Securities being
sold by the holders thereof, which underwriting discounts or selling commissions shall be
borne
by such holders. Additionally, in an underwritten offering, all selling stockholders and the
Company shall bear the expenses of the Underwriter pro rata in proportion to the respective
amount of shares each is selling in such offering.
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3.4. Information. The holders of Registrable Securities shall provide such information
as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection
with the preparation of any Registration Statement, including amendments and supplements thereto,
in order to effect the Registration of any Registrable Securities under the Securities Act pursuant
to Section 2 and in connection with the Company’s obligation to comply with federal and applicable
state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1. Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Investor and each other holder of Registrable Securities, and each of their
respective officers, employees, affiliates, directors, partners, members, attorneys and
agents, and
each person, if any, who controls an Investor and each other holder of Registrable Securities
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
(each, an “Investor Indemnified Party”), from and against any expenses, losses,
judgments,
claims, damages or liabilities, whether joint or several, arising out of or based upon any
untrue
statement (or allegedly untrue statement) of a material fact contained in any Registration
Statement under which the sale of such Registrable Securities was registered under the
Securities
Act, any preliminary prospectus, final prospectus or summary prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration Statement, or
arising out of or based upon any omission (or alleged omission) to state a material fact
required
to be stated therein or necessary to make the statements therein not misleading, or any
violation
by the Company of the Securities Act or any rule or regulation promulgated thereunder
applicable to the Company and relating to action or inaction required of the Company in
connection with any such Registration; and the Company shall promptly reimburse the Investor
Indemnified Party for any legal and any other expenses reasonably incurred by such Investor
Indemnified Party in connection with investigating and defending any such expense, loss,
judgment, claim, damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such expense, loss, claim, damage or liability
arises
out of or is based upon any untrue statement or allegedly untrue statement or omission or
alleged
omission made in such Registration Statement, preliminary prospectus,
final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity
with information furnished to the Company, in writing, by such selling holder expressly for
use
therein. The Company also shall indemnify any Underwriter of the Registrable Securities, their
officers, affiliates, directors, partners, members and agents and each person who controls
such
Underwriter on substantially the same basis as that of the indemnification provided above in
this
Section 4.1.
4.2. Indemnification by Holders of Registrable Securities. Each selling holder
of Registrable Securities will, in the event that any Registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by such selling
holder, indemnify and hold harmless the Company, each of its directors and officers and each
underwriter (if any), and each other selling holder and each other person, if any, who
controls
another selling holder or such underwriter within the meaning of the Securities Act, against
any
losses, claims, judgments, damages or liabilities, whether joint or several, insofar as such
losses,
claims, judgments, damages or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement (or allegedly untrue) statement of a material fact contained in the
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Registration Statement under which the sale of such Registrable Securities was registered under the
Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in any
Registration Statement, or any amendment or supplement to the Registration Statement, or arise out
of or are based upon any omission (or alleged omission) to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, if the statement or
omission was made in reliance upon and in conformity with information furnished in writing to the
Company by such selling holder expressly for use therein, and shall reimburse the Company, its
directors and officers, and each other selling holder or controlling person for any legal or other
expenses reasonably incurred by any of them in connection with investigation or defending any such
loss, claim, damage, liability or action. Each selling holder’s indemnification obligations
hereunder shall be several and not joint and shall be limited to the amount of any net proceeds
actually received by such selling holder.
4.3. Conduct of Indemnification Proceedings.
Promptly after receipt by any person of any notice of any loss, claim, damage or liability or any action in respect of which
indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified
Party”)
shall, if a claim in respect thereof is to be made against any other person for
indemnification
hereunder, notify such other person (the “Indemnifying Party”) in writing of the loss,
claim,
judgment, damage, liability or action; provided, however, that the failure by the Indemnified
Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability
which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely
to the extent the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified
Party is seeking indemnification with respect to any claim or action brought against the
Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim
or
action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to
assume
control of the defense thereof with counsel satisfactory to the Indemnified Party. After
notice
from the Indemnifying Party to the Indemnified Party of its election to assume control of the
defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified
Party for any legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of investigation; provided,
however, that in any action in which both the Indemnified Party and the Indemnifying Party are
named as defendants, the Indemnified Party shall have the right to employ separate counsel
(but
no more than one such separate counsel) to represent the Indemnified Party and its controlling
persons who may be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Indemnified Party against the Indemnifying Party, with the fees and
expenses of such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by the same
counsel
would be inappropriate due to actual or potential differing interests between them. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent
to
entry of judgment or effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such judgment or settlement includes
an unconditional release of such Indemnified Party from all liability arising out of such
claim or proceeding.
13
4.4. CONTRIBUTION.
4.4.1. If the indemnification provided for in the foregoing Sections 4.1,
4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party, in lieu of
indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying
Parties in
connection with the actions or omissions which resulted in such loss, claim, damage, liability
or
action, as well as any other relevant equitable considerations. The relative fault of any
Indemnified Party and any Indemnifying Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by such Indemnified
Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any
other
method of allocation which does not take account of the equitable considerations referred to
in
the immediately preceding Section 4.4.1. The amount paid or payable by an Indemnified Party as
a result of any loss, claim, damage, liability or action referred to in the immediately
preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or
other
expenses incurred by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 4.4, no holder of
Registrable
Securities shall be required to contribute any amount in excess of the dollar amount of the
net
proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually
received by such holder from the sale of Registrable Securities which gave rise to such
contribution obligation. No person guilty of fraudulent misrepresentation (within the meaning of
Section 1l(f) of the Securities Act) shall be entitled to contribution from any person who
was not
guilty of such fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1. Rule 144. The Company covenants that it shall use its best efforts to file any
reports required to be filed by it under the Securities Act and the Exchange Act and shall use its
best efforts to take such further action as the holders of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holders to sell Registrable
Securities without registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rules may be amended from time to time, or
any similar Rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
6.1. Other Registration Rights. The Company represents and warrants that no person,
other than a holder of the Registrable Securities, has any right to require the Company to
register any shares of the Company’s capital stock for sale or to include shares of the Company’s
capital stock in any Registration filed by the Company for the sale of shares of capital stock for
its own account or for the account of any other person.
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6.2. Assignment; No Third Party Beneficiaries. This Agreement and the rights,
duties and obligations of the Company hereunder may not be assigned or delegated by the
Company in whole or in part. This Agreement and the rights, duties and obligations of the
holders of Registrable Securities hereunder may be freely assigned or delegated by such holder
of Registrable Securities in conjunction with and to the extent of any transfer of Registrable
Securities by any such holder. This Agreement and the provisions hereof shall be binding upon
and shall inure to the benefit of each of the parties, to Citigroup Global Markets Inc. and its
successors (as representative on behalf of itself and any other Underwriters and their successors)
and the permitted assigns of the Investor or holder of Registrable Securities or of any
assignee of the Investor or holder of Registrable Securities. This Agreement is not intended to confer any
rights or benefits on any persons that are not party hereto other than as expressly set forth
in Article 4 and this Section 6.2.
6.3. Notices. All notices, demands, requests, consents, approvals or other
communications (collectively, “Notices”) required or permitted to be given hereunder
or which
are given with respect to this Agreement shall be in writing and shall be personally served,
delivered by reputable air courier service with charges prepaid, or transmitted by hand
delivery,
telegram, telex or facsimile, addressed as set forth below, or to such other address as such
party
shall have specified most recently by written notice. Notice shall be deemed given on the date
of
service or transmission if personally served or transmitted by telegram, telex or facsimile;
provided, however, that if such service or transmission is not on a business day or is after
normal
business hours, then such notice shall be deemed given on the next business day. Notice
otherwise sent as provided herein shall be deemed given on the next business day following
timely delivery of such notice to a reputable air courier service with an order for next-day
delivery.
To the Company:
Liberty Acquisition Holdings Corp.
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, President and Chief Executive Officer
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, President and Chief Executive Officer
with a copy to:
Xxxxxxxxx Traurig LLP
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
To an Investor, to:
To the address of such Investor(s) as are then reflected on the records of the
Company.
To the address of such Investor(s) as are then reflected on the records of the
Company.
with a copy to:
Xxxxxxxxx Traurig LLP
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
15
6.4. Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in
lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there
shall be added as a part of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible that is valid and enforceable.
6.5. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which taken together shall constitute one
and the same instrument.
6.6. Entire Agreement. This Agreement (including all agreements entered into
pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto)
constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral or written.
6.7. Modifications and Amendments. No amendment, modification or
termination of this Agreement shall be binding upon any party unless executed in writing by
such party. Notwithstanding the foregoing, any and all parties must obtain the written consent of
Citigroup Global Markets Inc. to amend or modify this Agreement.
6.8. Titles and Headings. Titles and headings of sections of this Agreement are
for convenience only and shall not affect the construction of any provision of this Agreement.
6.9. Waivers and Extensions. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, provided, however, that such
waiver will not be effective against the waiving party unless it is in writing, is signed by such
party, and specifically refers to this Agreement. Waivers may be made in advance or after the
right waived has arisen or the breach or default waived has occurred. Any waiver may be
conditional. No waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or
provision herein contained. No waiver or extension of time for performance of any obligations
or acts shall be deemed a waiver or extension of the time for performance of any other
obligations or acts.
6.10. Remedies Cumulative. In the event that the Company fails to observe or
perform any covenant or agreement to be observed or performed under this Agreement, the
Investor or any other holder of Registrable Securities may proceed to protect and enforce its
rights by suit in equity or action at law, whether for specific performance of any term
contained in this Agreement or for an injunction against the breach of any such term or in aid of the
16
exercise of any power granted in this Agreement or to enforce any other legal or equitable right,
or to take any one or more of such actions, without being required to post a bond. None of the
rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each
such right, power or remedy shall be cumulative and in addition to any other right, power or
remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
6.11. Governing Law. This Agreement shall be governed by, interpreted under,
and construed in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed within the State of New York, without giving effect to any
choice-of-law provisions thereof that would compel the application of the substantive laws of
any other jurisdiction.
6.12. Waiver of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit, counterclaim or other
proceeding (whether based on contract, tort or otherwise) arising out of, connected with or
relating to this Agreement, the transactions contemplated hereby, or the actions of the
Investor in the negotiation, administration, performance or enforcement hereof.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be
executed and delivered by their duly authorized representatives as of date first written above.
| LIBERTY ACQUISITION HOLDINGS CORP. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: President and Chief Executive Officer | ||||
| INVESTORS: BERGGRUEN ACQUSITION HOLDINGS LTD |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: President | ||||
| XXXXXX EQUITIES II, LLC |
||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: Authorized Signatory | ||||
| /s/ Xxxx X. Xxxxxxxx | ||||
| Xxxx X. Xxxxxxxx | ||||
| /s/ Xxxxxx Xxxxxxxx | ||||
| Xxxxxx Xxxxxxxx | ||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx X. Xxxxxxxx | ||||
[Signature Page to Registration Rights Agreement]
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