REGISTRATION RIGHTS AGREEMENT OF OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC Dated as of November 19, 2007
Exhibit
4
EXECUTION
COPY
OF
OCH-ZIFF
CAPITAL MANAGEMENT GROUP LLC
Dated
as of November 19, 2007
Table
of Contents
Page
ARTICLE
I DEFINITIONS AND OTHER MATTERS
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||
Section
1.1
|
Definitions
|
1
|
ARTICLE
II PIGGYBACK REGISTRATION
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||
Section
2.1
|
Right
to Piggyback
|
4
|
Section
2.2
|
Priority
on Piggyback Registrations
|
5
|
Section
2.3
|
Lock-Up
and Other Agreements
|
5
|
Section
2.4
|
Registration
Procedures
|
6
|
Section
2.5
|
Payment
of Registration Expenses
|
8
|
Section
2.6
|
Indemnification
by the Company
|
8
|
Section
2.7
|
Indemnification
by the Investor
|
9
|
Section
2.8
|
Conduct
of Indemnification Proceedings
|
9
|
Section
2.9
|
Contribution
|
10
|
Section
2.10
|
Participation
in Public Offering
|
10
|
Section
2.11
|
Other
Indemnification
|
11
|
Section
2.12
|
Cooperation
by the Company
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11
|
Section
2.13
|
Parties
in Interest
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11
|
Section
2.14
|
Acknowledgement
Regarding the Company
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11
|
Section
2.15
|
Mergers,
Recapitalizations, Exchanges or Other Transactions Affecting Registrable
Securities
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11
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ARTICLE
III MISCELLANEOUS
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||
Section
3.1
|
Term
of the Agreement; Termination of Certain Provisions
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11
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Section
3.2
|
Amendments;
Waiver
|
12
|
Section
3.3
|
Governing
Law; Jurisdiction
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12
|
Section
3.4
|
Waiver
of Sovereign Immunity
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12
|
Section
3.5
|
Notices
|
13
|
Section
3.6
|
Severability
|
14
|
Section
3.7
|
Specific
Performance
|
14
|
Section
3.8
|
Assignment;
Successors
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14
|
Section
3.9
|
No
Third-Party Rights
|
14
|
Section
3.10
|
Section
Headings
|
15
|
Section
3.11
|
Execution
in Counterparts
|
15
|
i
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
is
entered into as of November 19, 2007, between Och-Ziff Capital Management Group
LLC, a Delaware limited liability company (the “Company”),
and DIC
Sahir Limited, an exempted company formed under the laws of the Cayman Islands
(the “Investor”).
WHEREAS,
the Company, the Investor and Dubai International Capital LLC are parties to
the
Securities Purchase and Investment Agreement, dated as of October 29, 2007,
as
the same may be amended from time to time (the “Securities
Purchase
Agreement)”;
WHEREAS,
the Investor is the holder of the Company's class A shares representing class
A
limited liability company interests of the Company (“Class
A Shares”);
and
WHEREAS,
the Company desires to provide the Investor with certain registration rights
with respect to such Class A Shares.
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements,
covenants and provisions herein contained, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
AND OTHER MATTERS
Section
1.1 Definitions
. Capitalized
terms used in this Agreement without other definition shall, unless expressly
stated otherwise, have the meanings specified in the Securities Purchase and
Investment Agreement or in this Section 1.1:
“Agreement”
has the meaning
ascribed to such term in the Recitals.
“Beneficial
Owner”
has the meaning
assigned to such term in Rules 13d-3 and 13d-5 under the Exchange Act (and
“Beneficially Own” and “Beneficial Ownership” shall have correlative
meanings).
“Board
of
Directors”
means the board
of directors of the Company.
“Class
A Shares”
has the meaning
ascribed to such term in the Recitals.
“Company”
has the meaning
ascribed to such term in the Recitals.
“Covered
Class A
Shares”
means the Class A
Shares purchased by the Investor pursuant to the Securities Purchase
Agreement.
1
“Exchange
Act”
means the U.S.
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exchange
Agreement”
means the
Exchange Agreement, to be entered into by the Company, Och-Ziff Holding Corporation,
Och-Ziff
Holding LLC, OZ Management LP, OZ
Advisors LP, OZ Advisors II LP and the
Och-Ziff Limited Partners (as defined in the Exchange Agreement) and Class
B
Shareholders (as defined in the Exchange Agreement) on the consummation of
the
initial Public Offering of Class A shares.
“Existing
Partners”
means Xxxxxx Xxx and the 17 other existing partners of the Company prior
to the
completion of the initial Public Offering of Class A Shares.
“FINRA”
means
the
Financial Industry Regulatory Authority.
“Governmental
Authority” means any national, local or foreign (including U.S. federal,
state or local) or supranational (including European Union) governmental,
judicial, administrative or regulatory (including self-regulatory) agency,
commission, department, board, bureau, entity or authority of competent
jurisdiction.
“Guarantor
Controlled
Affiliate” means any person that directly, or indirectly through one or
more intermediaries, is controlled by Dubai International Capital LLC, a limited
liability company organized under the laws of the Emirate of Dubai and “control”
for these purposes means the direct or indirect power to direct or cause the
direction of the management and policies of another person, whether by operation
of law or regulation, through ownership of securities, as trustee or executor
or
in any other manner.
“Indemnified
Parties”
has the meaning ascribed to such term in Section 2.6.
“Och-Ziff
Operating Group A
Units” has the meaning ascribed to such term in the Registration
Statement on Form S-1 (File No. 333-144256) (as amended from time to time)
as
filed by the Company with the SEC.
“Permitted
Transferee” means (i)
any Guarantor
Controlled Affiliate or (ii) any
successor
entity of such
person that
has complied with the requirements
of Section 3.8 hereof
applicable
to Permitted
Transferees.
“person”
means
any
individual, corporation, limited liability company, trust, joint venture,
association, company, partnership or other legal entity or a government or
any
department or agency thereof or self-regulatory organization.
“Piggyback
Amount” has
the meaning ascribed to such term in Section 2.1(a).
“Piggyback
Notice” has
the meaning ascribed to such term in Section 2.1(a).
“Piggyback
Registration” has the meaning ascribed to such term in Section
2.1(a).
2
“Public
Offering”
means an underwritten public offering pursuant to an effective registration
statement under the Securities Act, other than pursuant to a registration
statement on Form S-4 or Form S-8 or any similar or successor form.
“Registrable
Securities” means Covered Class A Shares held by the Investor or any
Permitted Transferee from time to time. For purposes of this
Agreement, Registrable Securities shall cease to be Registrable Securities
when
(i) a Registration Statement covering resales of such Registrable Securities
has
been declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective Registration
Statement or (iii) such Registrable Securities cease to be
outstanding.
“Registration
Expenses” means any and all expenses incident to the performance of or
compliance with any registration or marketing of securities, including all
(i)
SEC and securities exchange registration and filing fees, and all other fees
and
expenses payable in connection with the listing of securities on any securities
exchange or automated interdealer quotation system, (ii) fees and expenses
of
compliance with any securities or “blue sky” laws (including reasonable fees and
disbursements of counsel in connection with “blue sky” qualifications of the
securities registered), (iii) expenses in connection with the preparation,
printing, mailing and delivery of any registration statements, prospectuses
and
other documents in connection therewith and any amendments or supplements
thereto, (iv) security engraving and printing expenses, (v) internal expenses
of
the Company (including, without limitation, all salaries and expenses of the
officers and employees of the Company performing legal or accounting duties),
(vi) reasonable fees and disbursements of counsel for the Company and customary
fees and expenses for independent certified public accountants retained by
the
Company, (vii) reasonable fees and expenses of any special experts retained
by
the Company in connection with such registration, (viii) reasonable fees of
one
counsel for all such persons having rights to participate in such registration,
(ix) fees and expenses in connection with any review by the FINRA of the
underwriting arrangements or other terms of the offering, and all fees and
expenses of any “qualified independent underwriter,” including the fees and
expenses of any counsel thereto, (x) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding any
underwriting fees, discounts and commissions attributable to the sale of
Registrable Securities which shall be the sole obligation of the Investor,
(xi)
costs of printing and producing any agreements among underwriters, underwriting
agreements, any “blue sky” or legal investment memoranda and any selling
agreements and other documents in connection with the offering, sale or delivery
of the Registrable Securities, (xii) transfer agents' and registrars' fees
and
expenses and the fees and expenses of any other agent or trustee appointed
in
connection with such offering, (xiii) expenses relating to any analyst or
investor presentations or any “road shows” undertaken in connection with the
registration, marketing or selling of the Registrable Securities and (xiv)
fees
and expenses payable in connection with any ratings of the Registrable
Securities, including expenses relating to any presentations to rating
agencies.
“Rule
144” means Rule
144 promulgated under the Securities Act.
“SEC”
means
the U.S.
Securities and Exchange Commission.
3
“Securities
Act” means
the U.S. Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Securities
Purchase
Agreement” has the meaning ascribed to such term in the
Recitals.
“underwritten
offering” means a registration in which securities of the Company are
sold to an underwriter for reoffering to the public.
ARTICLE
II
PIGGYBACK
REGISTRATION
Section
2.1 Right
to
Piggyback
(a)
Subject to the terms and
conditions hereof, at any
time after the second
anniversary of the Closing
of the transactions under
the Securities Purchase
Agreement, whenever the
Company proposes
to register any of the
equity securities of the Company owned
by the Existing
Partners under the
Securities Act, the
Company shall
give prompt written notice of such
proposed filing but not
less than ten (10)
business days before the anticipated
filing date
(the “Piggyback
Notice”) to the
Investor. The
Piggyback Notice shall
offer the Investor
the
opportunity
to include in such
registration statement
a pro
rata
portion of
Registrable
Securities held by the
Investor (based
on the ratio of the number of
Purchased Class A Shares held by Investor on the date such registration
statement is
filed to the number of Class A Shares held by the Existing Partners on the
date
such registration statement is filed (calculated as if all of the then issued
and outstanding Och-Ziff
Operating
Group A Units had
been exchanged for Class A
Shares pursuant to the terms of the Exchange Agreement, but disregarding any
Class A restricted share units))
(the
“Piggyback
Amount”);
provided,
however, that the
Piggyback
Amountshall be reduced by
the aggregate number of Class A Shares sold by the Investor
pursuant to
Rule 144 or another
exemption from the registration requirements of the Securities Act at any time
during the 12-month period immediately prior to the date such registration
is
filed with the
SEC (a
“Piggyback
Registration”). Subject
to Section
2.2hereof,
the Company shall include
in each such Piggyback
Registration all Registrable Securities
(up
to the Piggyback Amount, as reduced)
with respect to which
the
Companyhas
received a written requestfor
inclusion therein within ten (10) days
after
such Piggyback
Notice has been
received
by the Investor. The
Investor
shall
be permitted to withdraw all or
part of the Registrable Securities from a Piggyback Registration at any time
prior to the effective dateof such Piggyback
Registration. The Company
shall
not be required to maintain the
effectiveness of the Registration Statement for a Piggyback Registration beyond
the earlier to occur of (i) 180 days after the effective date thereof and (ii)
consummation of the distribution,
sale or other transferby the Investorof
the Registrable Securities
included in such
Registration Statement. For
the avoidance of doubt, other than
the restrictions on transfer required by law and as set forth in Section 2.3
hereof, nothing hereinshall
be deemed to restrict the ability of the Investor to sell the Class A Shares
pursuant to Rule 144.
(b)
Notwithstanding any provision
in
this Section 2.1 or elsewhere in this Agreement, no provision relating to the
registration of Registrable Securities shall be construed as
permitting the
Investor to
effect a transfer of securities that
is otherwise prohibited
4
by
the terms of the Securities Purchase
Agreement or any other agreement between the Investor and
the Company or any of its
subsidiaries.
(c)
If, at any
time after giving written notice of
its intention to register any of its equity securities as set forth in this
Section 2.1 and prior to the time the registration statement filed in connection
with such Piggyback Registration is declared effective, the Company
shall determine for any reason
not to register such equity securities, the Company shall give written notice
of
such determination to the 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).
Section
2.2 Priority
on
Piggyback Registrations. The
Company shall use commercially reasonable efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit the
Investor to include Registrable Securities in the registration for such offering
and to include all such Registrable Securities (up to the Piggyback Amount,
as
reduced) on the same terms and conditions as any other shares of capital stock,
if any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of such underwritten
offering have informed the Company that it is their good faith opinion that
the
total amount of securities that the Investor, the Company and any other persons
having rights to participate in such registration, intend to include in such
offering is such as to adversely affect the success of such offering, then
the
amount of securities to be offered (i) for the account of the Investor and
(ii)
for the account of all such other persons (other than the Company) shall be
reduced to the extent necessary to reduce the total amount of securities to
be
included in such offering to the amount recommended by such managing underwriter
or underwriters by (a) first reducing the securities requested to be included
by
the Investor and all such other persons (other than the Company) requesting
such
registration, pro rata among such
holders on the basis of the number of equity securities requested to be included
in such Registration Statement by such holders and (b) second, reducing the
securities proposed to be sold by the Company, if any.
Section
2.3 Lock-Up
and
Other
Agreements. If
any registration of Registrable Securities shall be effected in connection
with
an underwritten offering, neither the Company nor the Investor shall offer,
pledge, announce the intention to sell, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer, dispose of or hedge,
directly or indirectly, or enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership
of
any Class A Shares or other securities of the Company or any securities
convertible into or exercisable or exchangeable for Class A Shares or other
securities of the Company (except as part of such underwritten offering and
except as otherwise permitted by any lock-up executed or granted in connection
with such underwritten offering) during the period beginning 10 business days
prior to the effective date of the applicable registration statement until
the
earlier of (i) such time as the Company and the lead managing underwriter shall
agree and (ii) 180 days following the pricing of the underwritten
offering.
5
Section
2.4 Registration
Procedures. In
connection with any request by the Investor that Registrable Securities be
registered pursuant to Section 2.1, subject to the provisions of Section 2,
the
paragraphs below shall be applicable:
(a)
Prior to filing a registration
statement or prospectus or any amendment or supplement thereto, the Company
shall,
if requested, furnish to the
Investor and
each underwriter, if any, of the
Registrable Securities covered by such registration statement copies of such
registration statement as proposed to be filed, and thereafter the Company shall
furnish to the Investor
and
underwriter, if any, such number of
copies of such registration statement, each amendment and supplement thereto
(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 any summary prospectus) and any
other
prospectus filed under Rule 424 or Rule 430A under the Securities Act and such
other documents as the Investor or
underwriter may reasonably
request in order to
facilitate the disposition of the Registrable Securities owned by the
Investor. The
Investor
shall
have the right to request that the
Company modify
any information contained in such
registration statement, amendment and supplement thereto pertaining to the
Investor
and
the Company shall
use all commercially reasonable
efforts to comply with such request, provided,
however,
that the Company shall
not have any obligation to so
modify any information if the Company reasonably
expects that so doing would cause
the prospectus to
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.
(b)
After the filing of the
registration statement, the
Company
shall
(i) cause the related prospectus
to be supplemented by any required prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii)
comply with the provisions of the Securities Act with respect to the disposition
of all
Registrable Securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition by
the
Investor thereof
set forth in such registration
statement or supplement to
such prospectus and (iii) promptly notify the Investor of
any stop order issued or threatened
by the SEC suspending the effectiveness of such registration statement or any
state securities commission and take all commercially reasonable efforts to
prevent the entry of such
stop order or to obtain the withdrawal of such order if
entered.
(c)
To the extent any “free
writing prospectus” as defined in Rule 405
under the
Securities Act) is used, the Company shall
file with the SEC any free writing
prospectus that is required
to be filed by the Company
with
the SEC in accordance
with the Securities Act and retain any free writing prospectus not required
to
be filed.
(d)
The Company
shall
use its commercially reasonable
efforts to (i) register or qualify the Registrable Securities covered
by such
registration statement under such other securities or “blue sky” laws
of such jurisdictions in the United
States as the Investor
reasonably
requests
and (ii) cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or
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 reasonably necessary or advisable to enable the Investor to
consummate the disposition of the Registrable
Securities owned by the Investor,
provided
that the Company
shall
not be required to (A) qualify
6
generally
to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 2.4(d),
(B) subject itself to
taxation in any
such jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(e)
The Company
shall
immediately notify the
Investor at
any time when a prospectus relating
thereto is required to be delivered under the Securities Act, 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 such
Registrable Securities, 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 prepare and make available to
the
Investoror
underwriter, if any, and file with
the SEC any such supplement
or amendment.
(f)
The Company
shall have the right to select
the investment banker or investment bankers and managers to administer any
Piggyback Registration. In connection with any
Public Offering,
the Company shall
enter into customary
agreements (including an
underwriting agreement in customary form) and take such all other actions as
are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities in any such Public Offering, including
if necessary the engagement of a “qualified
independent underwriter”
in connection with the
qualification of the underwriting arrangements with the FINRA.
(g)
Subject to the execution of
confidentiality agreements satisfactory in form and substance to the
Company in
the exercise of its good faith
judgment,
pursuant to the reasonable request of the Investor,
the Company will
give to the Investor and
its
counsel
and accountants (i) reasonable
and customary access to its books and records and (ii) such opportunities to
discuss the business of the
Company
with
its directors, officers, employees,
counsel and the independent public accountants who have certified its financial
statements, as shall be appropriate, in the reasonable judgment of counsel
to
the Investor,
to enable it to
exercise
its
due
diligence responsibility,
provided
that any such discussions
shall be done upon the
prior written request therefor by Investor to the Company and such discussions
shall be held during normal business hours and in a manner so as to
not
unreasonably disrupt the
operation of the business of the Company.
(h)
The Investor
shall
promptly furnish in writing to the
Company such
information regarding itself and
the distribution, sale or
other transfer of the
Registrable Securities as the Company may
from time to time reasonably
request and
such other information as may be legally required or advisable in connection
with such registration.
(i)
The Investor
agrees
that, upon receipt of any notice
from the
Company of
the happening of any event of the
kind described in Section
2.4(e),
the Investor shall
forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until the Investor's
receipt of the copies of the
supplemented or amended prospectus contemplated
by Section
2.4(e),
and, if so directed by the
Company,
the
Investor
shall
deliver to the Company all
copies, other than any permanent
file copies then in the Investor's
possession, of the most recent
prospectus covering such Registrable Securities at the time
of receipt of
such notice. If the Company shall
give such notice, the Company shall
extend
7
the
period during which such
registration statement shall be maintained effective (including the
period referred to in
Section 2.1(a))
by the number of days during
the period from
and including the date of the giving of notice pursuant to
Section 2.4(e)
to the date when the Company shall
make available to the Investor a
prospectus supplemented or amended to
conform with the requirements of Section 2.4(e).
(j)
The Company
shall
use its commercially reasonable
efforts to list all Registrable Securities covered by such registration
statement on any securities exchange or quotation system on which any of the
Registrable Securities are then listed or traded.
(k)
The Company
shall
cooperate with the Investor to
facilitate the timely delivery of
Registrable Securities to be sold, which shall not bear any restrictive legends,
and to enable such Registrable Securities to be issued in such denominations
and
registered in such names
as
the Investor may
reasonably request at least two
business days prior to the closing of any sale of Registrable
Securities.
Section
2.5 Payment
of
Registration Expenses.
The
Company shall pay or promptly reimburse the Investor for all Registration
Expenses in connection with any Piggyback Registration.
Section
2.6 Indemnification
by the Company. In
the event of any registration of any Registrable Securities of the Company
under
the Securities Act pursuant to this Article II, the Company will, and it hereby
does, indemnify and hold harmless, to the extent permitted by law, Investor,
each affiliate of Investor and their respective directors and officers or
general and limited partners or members and managing members (including any
director, officer, affiliate, employee, agent and controlling person of any
of
the foregoing) and each other person, if any, who controls such seller within
the meaning of the Securities Act (collectively, the “Indemnified Parties”,
which definition shall, for purposes of Section 2.8, be deemed to include those
persons entitled to indemnification pursuant to Section 2.7), from and against
any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (1) any
untrue statement or alleged untrue statement of a material fact contained in
any
registration statement or amendment or supplement thereto under which such
Registrable Securities were registered or any omission or alleged omission
to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (2) any untrue statement
or alleged untrue statement of a material fact contained in any prospectus,
any
free writing prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Securities Act in respect of the
Registrable Securities, or amendment or supplement thereto, or any omission
or
alleged omission to state therein a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company
shall not be liable to any Indemnified Party in any such case to the extent
that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, prospectus, any free writing prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Securities Act in respect of the Registrable Securities, or amendment or
supplement thereto,
8
in
reliance upon and in conformity with written information furnished to the
Company with respect to such seller specifically for use in the preparation
thereof.
Section
2.7 Indemnification
by the
Investor. The
Investor hereby indemnifies and holds harmless, and the Company may require,
as
a condition to including any Registrable Securities in any registration
statement filed in accordance with this Article II, that the Company shall
have
received an undertaking reasonably satisfactory to it from any underwriter
to
indemnify and hold harmless, the Company and all other prospective sellers
of
securities of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and their respective directors
and officers or general and limited partners or members and managing members
(including any director, officer, employee, agent and controlling person of
any
of the foregoing) to the same extent as the indemnity set forth in Section
2.6
above, but only with respect to any losses, claims, damages or liabilities
that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by and in respect of the Investor
or any underwriter specifically for use in the preparation of such registration
statement, prospectus, any free writing prospectus or any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Securities
Act
in respect of the Registrable Securities, or amendment or supplement
thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company, the
Investor or any underwriter, or any of their respective directors and officers
or general and limited partners or members and managing members (including
any
director, officer, employee, agent and controlling person of any of the
foregoing) and shall survive the transfer of such securities by such
person. In no event shall any such indemnification liability of the
Investor be greater in amount than the dollar amount of the proceeds received
by
the Investor upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
Section
2.8 Conduct
of
Indemnification Proceedings. Promptly
after receipt by an Indemnified Party hereunder of written notice of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Article II, such Indemnified Party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such action; provided, that the failure
of
the Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Article II, except to the
extent that the indemnifying party is materially prejudiced by such failure
to
give notice.
In
case
any such action is brought against an Indemnified Party, unless in such
Indemnified Party's reasonable judgment a conflict of interest between such
Indemnified Party and indemnifying parties may exist in respect of such claim,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified
to
the extent that it may wish, 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 be liable to such Indemnified Party for any legal
or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. It is
understood and agreed that the indemnifying person shall not, in connection
with
any proceeding or related
9
proceeding
in the same jurisdiction, be liable for the fees and expenses of more than
one
separate firm (in addition to any local counsel) for all Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are
incurred. The indemnifying person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the
indemnifying person agrees to indemnify each Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. No
indemnifying person shall, without the written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Party is or could have been a party and indemnification
could have been sought hereunder by such Indemnified Party, unless such
settlement (A) includes an unconditional release of such Indemnified Party,
in
form and substance reasonably satisfactory to such Indemnified Party, from
all
liability on claims that are the subject matter of such proceeding and (B)
does
not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Party.
Section
2.9 Contribution. If
the indemnification provided for in this Article II from the indemnifying party
is unavailable to an Indemnified Party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then the
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 losses, claims, damages, liabilities or expenses in such proportion
as
is appropriate to reflect the relative fault of the indemnifying party and
Indemnified Parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying
party and Indemnified Parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or Indemnified Parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party under this Section 2.9
as a result of the losses, claims, damages, liabilities and expenses referred
to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or
proceeding.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 2.9 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 paragraph. 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
guilty of such fraudulent misrepresentation.
Section
2.10 Participation
in Public Offering. The
Investor may not participate in any Public Offering hereunder and the Company
shall not be required to include the securities of the Investor unless the
Investor completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the provisions of this Agreement in respect of registration
rights.
10
Section
2.11 Other
Indemnification. Indemnification
similar to that specified herein (with appropriate modifications) shall be
given
by the Company and the Investor with respect to any required registration or
other qualification of securities under any federal or state law or regulation
or Governmental Authority other than the Securities Act.
Section
2.12 Cooperation
by the Company. If
Investor shall transfer any Registrable Securities pursuant to Rule 144 (and
not
in violation of the Securities Purchase Agreement), the Company shall use its
commercially reasonable efforts to cooperate with Investor and shall use
commercially reasonable efforts to provide to Investor such information and
legal opinions as may be required to be provided to effect a transfer of such
Registrable Securities under Rule 144.
Section
2.13 Parties
in
Interest. The
Investor shall be entitled to receive the benefits of this Agreement and shall
be bound by the terms and provisions of this Agreement by reason of the
Investor's election to participate in a registration under this Article
II.
Section
2.14 Acknowledgement
Regarding the Company. Other
than those determinations reserved expressly to the Investor, all determinations
necessary or advisable under this Article II shall be made by the Board of
Directors of the Company, the determinations of which shall be final and
binding.
Section
2.15 Mergers,
Recapitalizations, Exchanges or Other Transactions Affecting Registrable
Securities. The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to the Registrable Securities to any and all securities or shares
of the Company or any successor or assign of any such person (whether by merger,
amalgamation, consolidation, sale of assets or otherwise) that may be issued
in
respect of, in exchange for, or in substitution of such Registrable Securities,
by reason of any dividend, split, issuance, reverse split, combination,
recapitalization, reclassification, merger, amalgamation, consolidation or
otherwise.
ARTICLE
III
MISCELLANEOUS
Section
3.1 Term
of the
Agreement; Termination of Certain Provisions.
(a)
The term of this Agreement shall
continue until the first to occur of (i) such time as the Investordoes
not hold any Registrable
Securitiesand
(ii)such time as
the Agreement is terminated
by the Investor.
(b)
Unless this Agreement is
theretofore terminated pursuant to Section 3.1(a) hereof, the Investorshall
be bound by the provisions of this
Agreement with respect to any Registrable Securities until such time as
the Investorceases
to hold any Registrable
Securities. Thereafter, the Investorshall
no longer be bound by the
provisions of this Agreement other than Sections 2.6, 2.7, 2.8 and 2.10 and
this
Article III.
11
Section
3.2 Amendments;
Waiver.
(a)
The provisions of this
Agreement may be amended
only by written agreement of the Company and
the Investor.
(b)
No provision of this Agreement
may
be waived except by an instrument in writing executed by the party against
whom
the waiver is to be effective.
Section
3.3 Governing
Law; Jurisdiction.
This
Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York without
reference to any choice of law provision thereof that would mandate the
application
of the laws of another
jurisdiction, and shall inure to the benefit of, and be binding upon and inure
to the benefit of the parties hereto and their respective
successors. Each party to this Agreement hereby irrevocably and
unconditionally, withrespect
to any matter or dispute arising
under, or in connection with, this Agreement and the transactions contemplated
hereby (i) submits for itself and its property in any legal action or proceeding
relating to this Agreement, or for recognition and enforcement
of any judgment in respect
thereof, to the exclusive general jurisdiction of the courts of the State of
New
York, the courts of the United States of America for the Southern District
of
New York, and any appellate courts thereof (the “New
York
Courts”)
(and covenants not to commence any
legal action or proceeding in any other venue or jurisdiction); (ii) consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venueof any such action or
proceeding in any
such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same; (iii) agrees that service
of
process in any such action will be in accordance with the laws
of the State of New York but that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law; (iv) waives any and all
immunityfrom suit,
execution, attachment or other legal process; and (v) waives in
connection with any such
action any and all rights
to a jury trial. The parties agree that
any judgment of
any New York Court may be enforced in any court having jurisdiction over any
party of any of their assets.
Section
3.4 Waiver
of
Sovereign Immunity.
With
respect to the contractual liability
of Investor to
perform its obligations under this Agreement,
with respect to itself or its
property,the
Investor:
(a)
agrees that the execution,
delivery and performance by it of this Agreement
constitutes
private
and commercial actsdone for private and
commercial
purposes;
(b)
agrees that, should any
proceedings be brought against it or its assets in any jurisdiction in relation
to this
Agreementor any
transaction contemplated
by
this Agreement, the
Investor is not entitled to any immunity on the basis or
sovereignty or
otherwise in respect of its
obligations under this Agreement, and no immunity from
such proceedings
(including, without limitation, immunity from service of process from suit,
from
the jurisdiction of any court, from an order or injunction of
such court or the
enforcement of same against its assets) shall be claimed by or on behalf
of such
party or with respect
to
its assets;
12
(c)
waives, in any such proceedings,
to the fullest extentpermitted
by law, any right of immunity
which it or any of its
assets now has or may acquire in the future in any
jurisdiction;
(d)
consents generally in respect
of
the enforcement of any judgment or award against it in any such proceedings
to
the giving of any relief or the issue of any process in any jurisdiction in connection
with such
proceedings (including, without limitation, pre-judgment attachment, post
judgment attachment, the making, enforcement or execution against or in respect
of any assets whatsoever irrespective of their use or intendeduse
of any order or judgment that may be
made or given in connection therewith); and
(e)
specifies that, for the purposes
of this provision, “assets” shall be taken as excluding “premises of the
mission” as defined in the Vienna Convention on Diplomatic Relations signed at Vienna,
April 18, 1961,
“consular premises” as defined in the Vienna Convention on Consular Relations
signed in 1963, and military property or military assets or property of the
Investor.
Section
3.5 Notices. All
notices, demands and other communications provided for or permitted hereunder
shall be made in writing and shall be by facsimile, overnight courier service
or
personal delivery as follows:
if
to the
Company:
Och-Ziff
Capital Management Group LLC
0
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile: (000)
000-0000
Attention: Chief
Legal Officer
with
a
copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Facsimile: (000)
000-0000
Attention: Xxxx
X. Xxxxx
Xxxxxxx
X. Xxxxxxxxx
13
if
to
Investor:
DIC
Sahir
Limited
c/o
Dubai
International Capital LLC
X.X.
Xxx
00000
Xxx
Xxxx, Xxxx Wing 00xx Xxxxx
XXXX,
Xxxxxx Xxxxx Xxxx
Xxxxx
Xxxxxx
Xxxx Xxxxxxxx
Facsimile: 971
4 362 0999
Attention: Xxxxx
Xxxxxxxx
All
such
notices, demands and other communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; the next business day,
if
delivered by overnight courier service; and when receipt is mechanically
acknowledged, if sent by facsimile. Any party may by notice given in
accordance with this Section 3.5 designate another address or person for receipt
of notices hereunder.
Section
3.6 Severability. If
any provision of this Agreement is finally held to be invalid, illegal or
unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired
and (b) the invalid or unenforceable term or provision shall be deemed replaced
by a term or provision that is valid and enforceable and that comes closest
to
expressing the intention of the invalid or unenforceable term or
provision.
Section
3.7 Specific
Performance. Each
party hereto acknowledges that the remedies at law of the other parties for
a
breach or threatened breach of this Agreement would be inadequate and, in
recognition of this fact, any party to this Agreement, without posting any
bond,
and in addition to all other remedies that may be available, shall be entitled
to obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy that may be then available.
Section
3.8 Assignment;
Successors. This
Agreement shall be binding upon and inure to the benefit of the respective
legatees, legal representatives, successors and assigns of the Investor; provided,however,
that the Investor
may not assign this Agreement or any of its rights or obligations hereunder
except to any Permitted Transferee who executes a written agreement in form
and
substance reasonably satisfactory to the Company agreeing to be bound by the
terms and conditions of this Agreement, and any purported assignment in breach
hereof by the Investor shall be void; and provided further that no
assignment of this Agreement by the Company or to a successor of the Company
(by
operation of law or otherwise) shall be valid unless such assignment is made
to
a person which succeeds to the business of such person substantially as an
entirety.
Section
3.9 No
Third-Party Rights. Other
than as expressly provided herein, nothing in this Agreement will be construed
to give any person other than the parties to this Agreement any legal or
equitable right, remedy, or claim under or with respect to this Agreement or
any
provision of this Agreement. This Agreement and all of its provisions
and conditions are
14
for
the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns.
Section
3.10 Section
Headings. The
headings of sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation.
Section
3.11 Execution
in
Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all such counterparts shall together constitute but
one
and the same instrument.
15
IN
WITNESS WHEREOF, the parties hereto have duly executed or caused to be duly
executed this Agreement as of the dates indicated.
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC | |||
|
By:
|
/s/ Xxxxxx Xxx | |
Name: Xxxxxx Xxx | |||
Title: Chief Executive Officer | |||
[Signature
page to Registration Rights Agreement]
16
DIC SAHIR LIMITED | |||
|
By:
|
/s/ Xxxxx Xxxxxxxx | |
Name: Xxxxx Xxxxxxxx | |||
Title: Director | |||
|
By:
|
/s/ Xxxxxx Xxxxxx | |
Name: Xxxxxx Xxxxxx | |||
Title: Director | |||
[Signature
page to Registration Rights Agreement]
17