REGISTRATION RIGHTS AGREEMENT
Exhibit
10.29
Execution
Execution
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
October 22, 2007, by and among Apollo Global, Inc., a Delaware corporation (the “Company”),
Apollo Group, Inc., an Arizona corporation (“Apollo”) and Carlyle Ventures Partners III,
L.P., a Delaware limited partnership (“Carlyle” and, together with Apollo and each
Affiliate of Carlyle and Apollo that hereafter becomes a shareholder of the Company, the
“Shareholders”). Unless otherwise indicated herein, capitalized terms used herein are
defined in paragraph 9 hereof.
RECITALS
The Company, Apollo and Carlyle are parties to (i) a Joint Venture Agreement dated as of the
date hereof (the “Joint Venture Agreement”), and (ii) a Shareholders’ Agreement dated as of
the date hereof (the “Shareholders’ Agreement”).
As a condition to the consummation of the transactions contemplated by the Joint Venture
Agreement, the parties hereto are entering into this Agreement to provide the registration rights
set forth herein and to provide for certain rights and obligations in respect thereto as
hereinafter provided.
AGREEMENT
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the date that is 180 days after an
Initial Public Offering, (i) the holders of a majority of the Apollo Registrable Securities or (ii)
the holders of a majority of the Carlyle Registrable Securities, each may request registration
under the Securities Act of all or part of their Registrable Securities on Form S-1 or any similar
long-form registration statement (“Long-Form Registrations”) or, if available, such holders
may request registration under the Securities Act of all or part of their Registrable Securities on
Form S-3 (including pursuant to Rule 415 under the Securities Act) or any similar short-form
registration statement (“Short-Form Registrations”). Each request for a Demand
Registration shall specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such requested registration
to all other holders of Registrable Securities and, subject to paragraph 1(d) below, will include
in such registration all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 10 days after the receipt of the Company’s notice.
Subject to paragraph 5(b), a Demand Registration shall not count as a request for registration
pursuant to this paragraph 1 if at least 50% of the Registrable Securities that the holders
initiating such Demand Registration have requested to be registered in such Demand Registration are
not registered for reasons other than their voluntary decision not to do so. All registrations
requested pursuant to this paragraph 1(a) are referred to herein as “Demand Registrations.”
(b) Long-Form Registrations. The holders of a majority of the Apollo Registrable
Securities will be entitled to request four Long-Form Registrations in which the Company will pay
all Registration Expenses. The holders of a majority of the Carlyle Registrable Securities will be
entitled to request two Long-Form Registrations in which the Company will pay all Registration
Expenses. Subject to paragraph 5(b), a registration will not count as one of the permitted
Long-Form Registrations until it has become effective unless a Shareholder requesting a Long-Form
Registration that did not become effective elects to have its Registration Expenses paid by the
Company in connection with such Long-Form Registration. Subject to paragraph 5(b), a Company will
pay all Registration Expenses in connection with any registration initiated as a Long-Form
Registration whether or not it becomes effective. All Long-Form Registrations shall be
underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form Registrations provided
pursuant to paragraph 1(b), the (i) holders of a majority of the Apollo Registrable Securities, and
(ii) holders of a majority of the Carlyle Registrable Securities, will each be entitled, subject to
the limitations set forth herein, to request an unlimited number of Short-Form Registrations in
which the Company will pay all Registration Expenses; provided that the aggregate offering
value of the Registrable Securities requested to be registered by Apollo or Carlyle in any
Short-Form Registration must equal at least $[1,000,000] in the aggregate. Subject to paragraph
5(b), the Company will pay all Registration Expenses in connection with any registration initiated
as a Short-Form Registration whether or not it becomes effective. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any applicable short form. After
the Company has become subject to the reporting requirements of the Securities Exchange Act, the
Company will use its best efforts to make Short-Form Registrations available for the sale of
Registrable Securities, including but not limited to compliance with paragraph 8 hereof.
(d) Priority on Demand Registrations. The Company will not include in any Demand
Registration any securities which are not Registrable Securities without the prior written consent
of the holders of a majority of the Registrable Securities included in such Demand Registration.
If a Demand Registration is an underwritten offering and the managing underwriters advise the
Company in writing (with a copy to each party hereto requesting registration of Registrable
Securities) that in their opinion the number of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without adversely affecting the
marketability of the offering, the Company will include in such registration prior to the inclusion
of any securities which are not Registrable Securities the number of Registrable Securities
requested to be included which in the opinion of such underwriters can be sold without adversely
affecting the marketability of the offering, pro rata among the respective holders thereof on the
basis of the number of shares of Registrable Securities owned by such Shareholder.
(e) Restrictions on Demand Registrations. The Company will not be obligated to effect
any Demand Registration within three months after the effective date of a previous Demand
Registration. The Company may postpone for up to three months the filing or the effectiveness of a
registration statement for a Demand Registration if the Company’s board of directors determines in
its reasonable good faith judgment that such Demand Registration would
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reasonably be expected to have a material adverse effect on any proposal or plan by the
Company or any of its subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or similar transaction;
provided that in such event, the holders of a majority of Registrable Securities initially
requesting such Demand Registration will be entitled to withdraw such request and, if such request
is withdrawn, such Demand Registration will not count as one of the permitted Demand Registrations
hereunder and the Company will pay all Registration Expenses in connection with such registration;
provided, that the Company may delay a Demand Registration hereunder only once in any
twelve-month period.
(f) Selection of Underwriters. The holders of a majority of the Apollo Registrable
Securities included in any Demand Registration will have the right to select the investment
banker(s) and manager(s) to administer the offering, subject to the (x) approval of the Board of
Directors of the Company, which approval will not be unreasonably withheld or delayed and (y)
Carlyle’s right to name a co-manager for the offering if Carlyle Registrable Securities are to be
included in the offering. In the event that none of the Apollo Registrable Securities are included
in such Demand Registration, Carlyle will have the right to make such selection, subject to the
approval of the Board of Directors of the Company, which approval will not be unreasonably withheld
or delayed.
(g) Other Registration Rights. The Company will not grant to any Persons the right to
request the Company to register any equity securities of the Company, or any securities convertible
or exchangeable into or exercisable for such securities (whether as a demand registration or a
piggyback registration), without the prior written consent of the holders of a majority of the
Apollo Registrable Securities and of a majority of the Carlyle Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Upon completion by the Company of an Initial Public Offering
(and any Initial Public Offering that is not a Qualified IPO shall be undertaken only with the
prior written consent of Carlyle), whenever the Company proposes to register any of its securities
(including any proposed registration of the Company’s securities by any third party) under the
Securities Act (other than pursuant to a registration on Form S-4 or S-8 or any successor or
similar forms) and the registration form to be used may be used for the registration of Registrable
Securities (a “Piggyback Registration”), whether or not for sale for its own account, the
Company will give prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration and will include in such registration all Registrable Securities of
the same class or series of securities that the Company proposes to register with respect to which
the Company has received written requests for inclusion therein within 30 days after the receipt of
the Company’s notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of Registrable
Securities will be paid by the Company in all Piggyback Registrations whether or not such
registration is consummated.
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(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing (with a copy to each party hereto requesting registration of Registrable Securities) that
in their opinion the number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the marketability of such
offering, the Company will include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the basis of the number
of Registrable Securities owned by each such holder and (iii) third, any other securities requested
to be included in such registration pro rata among the holders thereof on the basis of the number
of such securities owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities, and the
managing underwriters advise the Company in writing (with a copy to each party hereto requesting
registration of Registrable Securities) that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include in such
registration (i) first, the securities requested to be included therein by the holders requesting
such registration and the Registrable Securities requested to be included in such registration, pro
rata among the holders of such securities on the basis of the number of Registrable Securities
owned by each such holder and (ii) second, any other securities requested to be included in such
registration.
(e) Other Registrations. If the Company has previously filed a registration statement
with respect to Registrable Securities pursuant to paragraph 1 or pursuant to this paragraph 2, and
if such previous registration has not been withdrawn or abandoned, the Company will not file or
cause to be effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under the Securities Act
(except on Form S-4 or S-8 or any successor form), whether on its own behalf or at the request of
any holder or holders of such securities, until a period of at least three months has elapsed from
the effective date of such previous registration.
3. Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each holder of Registrable Securities
agrees not to effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities, options or rights convertible into or
exchangeable or exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of the Company’s Initial Public Offering of Common Stock
under the Securities Act or during the seven days prior to and the 90-day period beginning on the
effective date of any other underwritten registration filed under the Securities Act (in each case,
except as part of such underwritten registration and except for such shorter period as the
underwriters managing the registered public offering and the holders of a majority of the
Registrable Securities otherwise agree in writing with respect to all holders of Registrable
Securities).
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(b) The Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree, and (ii) to cause
each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during such period (except as part of
such underwritten registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree in writing.
4. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
(a) prepare and (within 60 days after the end of the period within which requests for
registration may be given to the Company) file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and thereafter use its best
efforts to cause such registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto, the Company will
furnish to the holders of a majority of the Registrable Securities covered by such registration
statement and their counsel and if Carlyle Registrable Securities are covered by such registration
statement to Carlyle and its counsel copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness of each registration
statement filed hereunder and prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for a period of either
(i) not less than the number of days until all such securities have been disposed of (subject to
extension pursuant to paragraph 7(b)) or, if such registration statement relates to an underwritten
offering, such longer period as in the opinion of counsel for the underwriters a prospectus is
required by law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer or (ii) such shorter period as will terminate when all of the securities
covered by such registration statement have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such registration statement
(but in any event not before the expiration of any longer period required under the Securities
Act), and comply with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such securities have
been disposed of in accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
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(c) furnish to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller
(provided that the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this subparagraph (d),
(ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery that, or upon the
discovery of the happening of any event as a result of which, the prospectus included in such
registration statement contains an untrue statement of a material fact or omits any fact necessary
to make the statements therein not misleading in the light of the circumstances under which they
were made, and, at the request of any such seller, the Company will prepare and furnish to such
seller a reasonable number of copies 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 fact necessary to make the
statements therein not misleading in the light of the circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed or quoted;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Registrable Securities being
sold and, if Carlyle Registrable Securities are being sold, Carlyle, or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
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(j) otherwise use its best efforts to comply with all applicable rules and regulations of the
Securities and Exchange Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Company’s first full calendar quarter 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;
(k) notify each seller of such Registrable Securities in the event of the issuance of any stop
order suspending the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of any securities
included in such registration statement for sale in any jurisdiction, and use its best efforts
promptly to obtain the withdrawal of such order;
(l) obtain one or more comfort letters, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), signed by the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold reasonably request
and Carlyle, if Carlyle Registrable Securities are also being sold;
(m) permit any holder of Registrable Securities which holder, in its reasonable judgment,
might be deemed to be an underwriter or a controlling Person of the Company, to participate in the
preparation of such registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included; and
(n) provide a legal opinion of the Company’s outside counsel, dated the effective date of such
registration statement (and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary form and covering
such matters of the type customarily covered by legal opinions of such nature.
The Company may require each seller of Registrable Securities as to which any registration is being
effected to furnish the Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request in writing.
5. Registration Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by the Company (all
such expenses being herein called “Registration
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Expenses”), will be borne as provided in this Agreement, except that the Company will,
in any event, pay its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which similar securities
issued by the Company are then listed.
(b) Notwithstanding anything in this Agreement to the contrary, the Company shall not be
required to pay for any Registration Expenses in connection with a registration proceeding begun
pursuant to paragraph 1(a) if the registration request is subsequently withdrawn at the request of
the initiating holders, unless such initiating holders agree to forfeit their right to one Demand
Registration pursuant to paragraph 1(b) (in which case such right shall be forfeited by the holders
initiating such request and all holders exercising their Piggyback Registration rights with respect
to such request); provided, however, that if at or prior to the time of such
withdrawal, such holders have learned of a material adverse change in the condition, business, or
prospects of the Company not known to such holders at the time of their request for such
registration (it being understood that a change in the Company’s stock price shall not constitute
in and of itself a material adverse change) and withdrawn their request for registration with
reasonable promptness after learning of such material adverse change, then such holders shall not
be required to pay any of such expenses and shall retain their rights pursuant to paragraph 1.
(c) In connection with each Demand Registration and each Piggyback Registration, the Company
will reimburse (i) the holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of (A) one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration and (B) any such other counsel retained for
the purpose of rendering opinions and reviewing documents on behalf of one or more holders of
Registrable Securities on behalf of whom such first counsel does not act and (ii) Carlyle for the
reasonable fees and disbursements of counsel to Carlyle in the event that Carlyle Registrable
Securities are covered by such registration.
(d) To the extent Registration Expenses are not required to be paid by the Company, each
holder of securities included in any registration hereunder will pay those Registration Expenses
allocable to the registration of such holder’s securities so included, and any Registration
Expenses not so allocable will be borne by all sellers of securities included in such registration
in proportion to the aggregate selling price of the securities to be so registered for each seller.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law,
each holder of Registrable Securities, its officers and directors and each Person that controls
such holder (within the meaning of the Securities Act) against any losses, claims, damages,
liabilities, joint or several, to which such holder or any such director or officer or controlling
Person may become subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon (i) any untrue or alleged untrue
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statement of material fact contained (A) in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or (B) in any application or
other document or communication (in this paragraph 6 collectively called an “application”)
executed by or on behalf of the Company or based upon written information furnished by or on behalf
of the Company filed in any jurisdiction in order to qualify any securities covered by such
registration statement under the “blue sky” or securities laws thereof, or (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary to make the
statements therein under the circumstances which such statements have been made not misleading, and
the Company will reimburse such holder and each such director, officer and controlling Person for
any legal or any other expenses incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Company will not be
liable 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 an untrue statement or
alleged untrue statement, or omission or alleged omission, made in such registration statement, any
such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon, and in conformity with, written information prepared and furnished
to the Company by such holder expressly for use therein or by such holder’s failure to deliver a
copy of the registration statement or prospectus or any amendments or supplements thereto after the
Company has timely furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person that controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the indemnification of the
holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of Registrable Securities
is participating, each such holder will furnish to the Company in writing such information as the
Company reasonably requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless the Company, its
directors and officers and each other Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities, joint or several, to which the
Company or any such director or officer or controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon
(i) any untrue or alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or
in any application or (ii) any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is made in such registration statement, any such prospectus
or preliminary prospectus or any amendment or supplement thereto, or in any application, in
reliance upon and in conformity with written information prepared and furnished to the Company by
such holder expressly for use therein, and such holder will reimburse the Company and each such
director, officer and controlling Person for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability, action or proceeding;
provided that the obligation to indemnify will be individual, not joint and several, to each holder
and will be limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
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(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give such prompt notice shall not impair any Person’s right
to indemnification hereunder to the extent such failure has not materially prejudiced the
indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the transfer of
securities. If the indemnification provided for in paragraph 6(a) from the Company is unavailable
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then the Company, in lieu of indemnifying the indemnified party, shall
contribute to the amount paid or payable by the 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 Company and the indemnified party, as well as any other relevant equitable
considerations. The relative faults of the indemnifying party and indemnified party 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, was made by, or relates to information supplied by, the Company or such indemnified
party, and the Company’s and indemnified party’s relative intent, knowledge, access to information
and opportunity to correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities or expenses referred to above shall be deemed to
include any legal or other fees, charges 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 paragraph 6(d) 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 preceding sentences. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution pursuant to this paragraph 6(d).
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve such arrangements
(including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option
requested by the managing underwriter(s), provided that
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no holder of Registrable Securities will be required to sell more than the number of
Registrable Securities that such holder has requested the Company to include in any registration)
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements; provided that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or warranties to the
Company or the underwriters (other than representations and warranties regarding such holder and
such holder’s intended method of distribution) or to undertake any indemnification or “holdback”
obligations to the Company or the underwriters with respect thereto, except as otherwise provided
in paragraphs 3 and 6 hereof.
(b) Each Person that is participating in any registration hereunder agrees that, upon receipt
of any written notice from the Company of the happening of any event of the kind described in
paragraph 4(e) and 4(k) above, such Person will forthwith discontinue the disposition of its
Registrable Securities pursuant to the registration statement until such Person’s receipt of the
copies of a supplemented or amended prospectus as contemplated by such paragraph 4(e). If the
Company gives any such written notice, the applicable time period mentioned in paragraph 4(b)
during which a registration statement is to remain effective will be extended by the number of days
during the period from and including the date of the giving of such written notice pursuant to this
paragraph to and including the date when each seller of a Registrable Security covered by such
registration statement has received the copies of the supplemented or amended prospectus
contemplated by paragraph 4(e).
8. Current Public Information. At all times after the Company has filed a
registration statement with the Securities and Exchange Commission pursuant to the requirements of
either the Securities Act or the Securities Exchange Act, the Company will file in a timely manner
all reports and other documents required to be filed by it under the Securities Act and the
Securities Exchange Act and the rules and regulations adopted by the Securities and Exchange
Commission thereunder, and will take such further action as any holder or holders of Registrable
Securities may reasonably request, all to the extent required to enable such holders to sell
Registrable Securities pursuant to Rule 144 adopted by the Securities and Exchange Commission under
the Securities Act (as such rule may be amended from time to time) or any similar rule or
regulation hereafter adopted by the Securities and Exchange Commission. Without limiting the
foregoing, the Company covenants that, at its own expense, it will promptly take such action as any
Shareholder may reasonably request, all to the extent required from time to time to enable such
Shareholder to transfer its Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rules 144, 144A or Regulation S under the
Securities Act or (ii) any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission. Upon the request of a Shareholder, the Company, at its own expense, will
promptly deliver to such Shareholder (i) a written statement as to whether it has complied with
such requirements (and such Shareholder shall be entitled to rely upon the accuracy of such written
statement), (ii) a copy of the most recent annual or quarterly report of the Company and (iii) such
other reports and documents as such Shareholder may reasonably request in order to avail itself of
any rule or regulation of the Securities and Exchange Commission allowing it to transfer its shares
without registration.
9. Definitions.
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“Affiliate” of a Shareholder means any other Person, entity or investment or
co-investment fund directly or indirectly controlling, controlled by or under common control with
the Shareholder and, in the case of a Shareholder which is an entity, any shareholder, member,
partner or other equity holder of such Shareholder, which, in each case, beneficially owns at least
10% of the outstanding voting interests of the Shareholder. Each fund managed by Carlyle or an
Affiliate of Carlyle shall be an Affiliate of Carlyle for purposes of this Agreement and no
portfolio company of Carlyle or its Affiliates shall be considered an Affiliate of Carlyle or such
Affiliate for purposes of this Agreement.
“Common Stock” means the common stock of the Company, par value $.001 per share.
“Apollo Registrable Securities” means (i) any shares of Common Stock issued to Apollo
pursuant to the Joint Venture Agreement; (ii) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in clause (i) by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, including a recapitalization or exchange and (iii) any other shares of
Common Stock now held or hereafter acquired by Apollo; provided, that in the event that
pursuant to such recapitalization or exchange, equity securities are issued which do not
participate in the residual equity of the Company (“Non-Participating Securities”), such
Non-Participating Securities will not be Registrable Securities. As to any particular shares
constituting Apollo Registrable Securities, such shares will cease to be Apollo Registrable
Securities when they have (x) been effectively registered under the Securities Act and disposed of
in accordance with the registration statement covering them, or (y) been sold to the public
through a broker, dealer or market maker pursuant to Rule 144 (or by similar provision then in
force) under the Securities Act or (z) have become eligible for sale under Rule 144(k).
“Carlyle Registrable Securities” means (i) any shares of Common Stock issued to
Carlyle or Carlyle Affiliates pursuant to the Joint Venture Agreement; (ii) any equity securities
issued or issuable directly or indirectly with respect to the securities referred to in clause (i)
by way of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, including a recapitalization or
exchange and (iii) any other shares of Common Stock now held or hereafter acquired by Carlyle or
any of Carlyle’s Affiliates; provided, that in the event that pursuant to such
recapitalization or exchange, equity securities are issued which do not participate in the residual
equity of the Company (“Non-Participating Securities”), such Non-Participating Securities
will not be Registrable Securities. As to any particular shares constituting Carlyle Registrable
Securities, such shares will cease to be Carlyle Registrable Securities when they have (x) been
effectively registered under the Securities Act and disposed of in accordance with the registration
statement covering them, or (y) been sold to the public through a broker, dealer or market maker
pursuant to Rule 144 (or by similar provision then in force) under the Securities Act or (z) have
become eligible for sale under Rule 144(k).
“Initial Public Offering” means an initial public offering by the Company of its
Common Stock to the public effected pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or any comparable statement under any similar United States
federal statute then in effect.
12
“Person” means an individual, a limited liability company, an association, a joint
stock company, a partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department, agency or political subdivision thereof.
“Qualified IPO” means the closing of the sale of shares of Common Stock in a firm
commitment underwritten public offering pursuant to an effective registration statement under the
Securities Act, in which the gross aggregate cash proceeds to the Company (before deduction of
underwriting discount, commissions and expenses of sale) are at least $50,000,000.
“Registrable Securities” means the Apollo Registrable Securities and the Carlyle
Registrable Securities, including such shares of Common Stock hereafter acquired by transferees of
the Apollo Registrable Securities and the Carlyle Registrable, provided that such transfers are
effected in accordance with the terms and conditions the Shareholders’ Agreement of even date
herewith with respect to transfers of Common Stock.
“Securities Act” means the Securities Act of 1933, as amended, or any similar federal
law then in force.
“Securities and Exchange Commission” includes any governmental body or agency
succeeding to the functions thereof.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, or
any similar federal law then in force.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to its securities which is inconsistent with or violates the rights granted
to the holders of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not take any
action, or permit any change to occur, with respect to its securities which would materially and
adversely affect the ability of the holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement or which would adversely affect
the marketability of such Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares).
(c) Remedies. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that any party hereto
will have the right to injunctive relief, in addition to all of its other rights and remedies at
law or in equity, to enforce the provisions of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the provisions of
this Agreement may be amended or waived only upon the prior written consent of each of the Company,
Carlyle and the holders of a majority of the Registrable Securities; provided, that if such
amendment or waiver would treat a holder or group of holders of Registrable Securities in a manner
different from any other holders of Registrable Securities (other than as already provided herein),
then such amendment or waiver will require the consent
13
of such holder or the holders of a majority of the Registrable Securities of such group
adversely treated. The Company will give prompt written notice to the parties hereto of any
amendments, modifications, or waivers of the provisions of this Agreement.
(e) Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective successors and assigns.
In addition, and whether or not any express assignment has been made, the provisions of this
Agreement that are for the benefit of the holders of Registrable Securities (or any portion
thereof) as such will be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof), subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities (or of such portion thereof)
required in order to be entitled to certain rights, or take certain actions, contained herein.
(f) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or the effectiveness or validity of any provision in any other
jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been contained herein.
(g) Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(i) Governing Law. This Agreement shall be construed according to and governed by the
laws of the State of Delaware, without reference to conflicts of laws principles.
(j) Notices. Any notice provided for in this Agreement will be in writing and will be
either (i) personally delivered, (ii) delivered by certified mail, return receipt requested, (iii)
sent by a nationally recognized overnight courier service (charges prepaid), or (iv) faxed with a
copy following by any method described in the foregoing clauses (i) to (iii), to each Shareholder
that is a party hereto at the address indicated in the Shareholders Agreement and to the Company at
the address indicated below, or at such address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally, five days after deposit in the U.S. mail
and one day after deposit with a nationally recognized overnight courier service.
If to the Company:
Apollo Global, Inc.
c/o Apollo Group, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
c/o Apollo Group, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
14
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
[Remainder of page intentionally left blank]
15
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement on the day
and year first above written.
| APOLLO GLOBAL, INC. | ||||||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||||||
| Name: | Xxxx Xxxxxxxxxx | |||||||
| Title: | President | |||||||
| APOLLO GROUP, INC. | ||||||||
| By: | /s/ Xxxxxx X. X’Xxxxx | |||||||
| Name: | Xxxxxx X. X’Xxxxx | |||||||
| Title: | ||||||||
| CARLYLE VENTURE PARTNERS III, L.P. | ||||||||
| By: | TCG VENTURES III, L.P. | |||||||
| Its General Partner | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxx | |||||||
| Title: | Managing Director | |||||||
