REGISTRATION RIGHTS AGREEMENT
Exhibit 10.7
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the ___ day of
,
2007, by and among: Santa Xxxxxx Media Corporation, a Delaware corporation (the
“Company”); and the undersigned parties listed under Investor on the signature page hereto (each,
an “Investor” and collectively, the “Investors”).
WHEREAS, the Investors currently hold all of the issued and outstanding securities of the
Company;
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of the Company’s securities held by
them;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have the following meanings:
“AGREEMENT” means this Agreement, as amended, restated, supplemented, or otherwise modified
from time to time.
“COMMISSION” means the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“COMMON STOCK” means the common stock, par value $0.001 per share, of the Company.
“COMPANY” is defined in the preamble to this Agreement.
“DEMAND REGISTRATION” is defined in Section 2.1.1.
“DEMANDING HOLDER” is defined in Section 2.1.1.
“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
time.
“FORM S-3” is defined in Section 2.3.
“INDEMNIFIED PARTY” is defined in Section 4.3.
“INDEMNIFYING PARTY” is defined in Section 4.3.
“INVESTOR” is defined in the preamble to this Agreement.
“INVESTOR INDEMNIFIED PARTY” is defined in Section 4.1.
“IPO SIDE LETTERS” means those certain Side Letters, of even date herewith, executed by each
of the Investors and acknowledged by the Company.
“MAXIMUM NUMBER OF SHARES” is defined in Section 2.1.4.
“NOTICES” is defined in Section 6.3.
“PIGGY-BACK REGISTRATION” is defined in Section 2.2.1.
“REGISTER,” “REGISTERED” and “REGISTRATION” mean a registration effected by preparing and
filing a registration statement or similar document in compliance with the requirements of the
Securities Act, and the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“REGISTRABLE SECURITIES” mean all of the shares
of Common Stock or units composed
of shares of Common Stock and Warrants owned or held by Investors prior to the date hereof or
purchased in a private placement prior to the initial public offering of the Company’s securities
under the Company’s Registration Statement, File No. 333-128384, originally filed with the
Commission on September 16, 2005. Registrable Securities include any warrants, shares of capital
stock or other securities of the Company issued as a dividend or other distribution with respect to
or in exchange for or in replacement of such shares of Common Stock,
Warrants or units. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a
Registration Statement with respect to the sale of such securities shall have become effective
under the Securities Act and such securities shall have been sold, transferred, disposed of or
exchanged in accordance with such Registration Statement; (b) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent public distribution of them shall not
require registration under the Securities Act; (c) such securities shall have ceased to be
outstanding, or (d) the Registrable Securities are salable under Rule 144(k).
“REGISTRATION STATEMENT” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations promulgated
thereunder for a public offering and sale of Common Stock (other than a registration statement on
Form S-4 or Form S-8, or their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another entity).
“RELEASE DATE” means the thirtieth day following the date of the consummation of the initial
Business Combination (as defined in the IPO Side Letter).
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“SECURITIES ACT” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“UNDERWRITER” means a securities dealer who purchases any Registrable Securities as principal
in an underwritten offering and not as part of such dealer’s market-making activities.
2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATION.
2.1.1. REQUEST FOR REGISTRATION. Subject to and in accordance with this Agreement, at any
time and from time to time on or after the Release Date, the holders of at least 50% of the
Registrable Securities then held by the Investors or the transferees of the Investors, may make a
written demand for registration under the Securities Act of all or part of their Registrable
Securities (a “DEMAND REGISTRATION”). Any demand for a Demand Registration shall specify the
number of shares of Registrable Securities proposed to be sold and the intended method(s) of
distribution thereof. The Company will notify all other holders of Registrable Securities of the demand, and each holder of Registrable Securities who wishes to include all or a
portion of such holder’s Registrable Securities in the Demand Registration (each such holder
including shares of Registrable Securities in such registration, a “DEMANDING HOLDER”) shall so
notify the Company in writing within fifteen (15) days after the receipt by the holder of the
notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 2.1.4 and the provisos set forth in Section
3.1.1. The Company shall not be obligated to effect more than an aggregate of two (2) Demand
Registrations under this Section 2.1.1 in respect of Registrable Securities.
2.1.2. EFFECTIVE REGISTRATION. A registration will not count as a Demand Registration until
the Registration Statement filed with the Commission with respect to such Demand Registration
covering at least 75% of the Registrable Securities specified in the
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notice received pursuant to Section 2.1.1 has been declared effective and the Company has
complied with all of its obligations under this Agreement with respect thereto; PROVIDED, HOWEVER,
that if, after such Registration Statement has been declared effective, the offering of Registrable
Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of
the Commission or any other governmental agency or court, the Registration Statement with respect
to such Demand Registration will be deemed not to have been declared effective, unless and until,
(i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a
majority-in-interest of the Demanding Holders thereafter elect to continue the offering; PROVIDED,
FURTHER, that the Company shall not be obligated to file a second Registration Statement until a
Registration Statement that has been filed is counted as a Demand Registration or is terminated.
2.1.3. UNDERWRITTEN OFFERING. If a majority-in-interest of the Demanding Holders so elect and
such holders so advise the Company as part of their written demand for a Demand Registration, the
offering of such Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering. In such event, the right of any holder to include its Registrable
Securities in such registration shall be conditioned upon such holder’s participation in such
underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the
extent provided herein. All Demanding Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form with the Underwriter
or Underwriters selected for such underwriting by a majority-in-interest of the holders initiating
the Demand Registration.
2.1.4. REDUCTION OF OFFERING. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Company and the Demanding Holders
in writing that the dollar amount or number of shares of Registrable Securities which the Demanding
Holders desire to sell, taken together with all other shares of Common Stock or other securities
which the Company desires to sell and the shares of Common Stock, if any, as to which registration
has been requested pursuant to written contractual piggy-back registration rights held by other
shareholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number
of shares that can be sold in such offering without adversely affecting the proposed offering
price, the timing, the distribution method, or the probability of success of such offering (such
maximum dollar amount or maximum number of shares, as applicable, the “MAXIMUM NUMBER OF SHARES”),
then the Company shall include in such registration: (i) first, the Registrable Securities as to
which Demand Registration has been requested by the Demanding Holders (pro rata in accordance with
the number of shares of Registrable Securities which such Demanding Holders have requested be
included in such registration, regardless of the number of shares held by such Demanding Holders)
that can be sold without exceeding the Maximum Number of Shares;
(ii) second, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (i), the
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shares of Common Stock or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clauses (i) and (ii), the shares of
Common Stock for the account of other persons that the Company is obligated to register pursuant to
written contractual arrangements with such persons and that can be sold without exceeding the
Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares have not
been reached under the foregoing clauses (i), (ii) and (iii), the shares of Common Stock that
other shareholders desire to sell that can be sold without exceeding the Maximum Number of Shares
to the extent that the Company, in its sole discretion, wishes to permit such sales pursuant to
this clause (v).
2.1.5. WITHDRAWAL. If a majority-in-interest of the Demanding Holders disapprove of the terms
of any underwriting or are not entitled to include all of their Registrable Securities in any
offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter or Underwriters of their
request to withdraw prior to the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding
Holders withdraws from a proposed offering relating to a Demand Registration, then such
registration shall not count as a Demand Registration provided for in Section 2.1.1.
2.2. PIGGY-BACK REGISTRATION.
2.2.1. PIGGY-BACK RIGHTS. If at any time on or after the Release Date the Company proposes to
file a Registration Statement under the Securities Act with respect to an offering of equity
securities, or securities or other obligations exercisable or exchangeable for, or convertible
into, equity securities, by the Company for its own account or for shareholders of the Company for
their account (or by the Company and by shareholders of the Company including, without limitation,
pursuant to Section 2.1), other than a Registration Statement (i) filed in connection with any
employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities
solely to the Company’s existing shareholders, (iii) for an offering of debt that is convertible
into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company
shall (x) give written notice of such proposed filing to the holders of Registrable Securities as
soon as practicable but in no event less than ten (10) days before the anticipated filing date,
which notice shall describe the amount and type of securities to be included in such offering, the
intended method(s) of distribution, and the name of the proposed managing Underwriter or
Underwriters, if any, of the offering, and (y) offer to the holders of Registrable Securities in
such notice the opportunity to register the sale of such number of shares of Registrable Securities
as such holders may request in writing within five (5) days following receipt of such notice (a
“PIGGY-BACK REGISTRATION”). The Company shall cause such Registrable Securities to be included in
such registration and shall use commercially reasonable efforts to cause the managing Underwriter
or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested
to be included in a Piggy-Back Registration to be included on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution thereof. All holders of
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Registrable Securities proposing to distribute their securities through a Piggy-Back
Registration that involves an Underwriter or Underwriters shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
2.2.2. REDUCTION OF OFFERING. If the managing Underwriter or Underwriters for a Piggy-Back
Registration that is to be an underwritten offering advises the Company and the holders of
Registrable Securities in writing that the dollar amount or number of shares of Common Stock which
the Company desires to sell, taken together with shares of Common Stock, if any, as to which
registration has been demanded pursuant to written contractual arrangements with persons other than
the holders of Registrable Securities hereunder, the Registrable Securities as to which
registration has been requested under this Section 2.2, and the shares of Common Stock, if any, as
to which registration has been requested pursuant to the written contractual piggy-back
registration rights of other shareholders of the Company, exceeds the Maximum Number of Shares,
then the Company shall include in any such registration:
(i) If the registration is undertaken for the Company’s account: (A) first, the shares
of Common Stock or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clause (A), the Registrable
Securities as to which registration has been requested under this Section 2.2 (pro rata in accordance with the number of shares of
Registrable Securities and securities each holder has actually requested to be included in
such registration, regardless of the number of shares of Common Stock with respect to which
such persons have the right to request such inclusion) that can be sold without exceeding
the Maximum Number of Shares; and (c) to the extent that the Maximum Number of Shares has
not been reached under the foregoing clauses (A) and (B), the shares of Common Stock as to
which registration has been requested pursuant to written contractual piggy-back
registration rights of other security holders (pro rata in accordance
with the number of shares such person has actually requested to be included in such registration, regardless of
the number of shares of Common Stock with respect such person has the right to request
inclusion).
(ii) If the registration is a “demand” registration undertaken at the demand of persons
other than the holders of Registrable Securities pursuant to written contractual
arrangements with such persons, (A) first, the shares of Common Stock for the account of the
demanding persons that can be sold without exceeding the Maximum Number of Shares; (B)
second, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares; and (C)
third, to the extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A) and (B), the Registrable Securities as to which registration has been
requested under this Section 2.2 (pro rata in
accordance with the number of shares such person has actually requested to be included in
such registration, regardless of the
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number of shares of Common Stock with respect such person has the right to request
inclusion); and (D) fourth, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock, if any, as
to which registration has been requested pursuant to written contractual piggy-back
registration rights which other shareholders desire to sell that can be sold without
exceeding the Maximum Number of Shares.
2.2.3. WITHDRAWAL. Any holder of Registrable Securities may elect to withdraw such holder’s
request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written
notice to the Company of such request to withdraw prior to the effectiveness of the Registration
Statement. The Company may also elect to withdraw a registration statement at any time prior to
the effectiveness of the Registration Statement without thereby incurring any liability to the
holders of Registrable Securities. Notwithstanding any such withdrawal, the Company shall pay all
expenses incurred by the holders of Registrable Securities in connection with such Piggy-Back
Registration as provided in Section 3.3.
2.3. REGISTRATIONS ON FORM S-3. The holders of Registrable Securities may at any time and
from time to time, request in writing that the Company register the resale of any or all of such
Registrable Securities on Form S-3 or any similar short-form registration which may be available at
such time (“FORM S-3”); PROVIDED, HOWEVER, that the Company shall not be obligated to effect such
request through an underwritten offering. Upon receipt of such written request, the Company will
promptly give written notice of the proposed registration to all other holders of Registrable
Securities, and, as soon as practicable thereafter, effect the registration of all or such portion
of such holder’s or holders’ Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other holder or holders joining in such
request as are specified in a written request given within fifteen (15) days after receipt of such
written notice from the Company; PROVIDED, HOWEVER, that the Company shall not be obligated to
effect any such registration pursuant to this Section 2.3: (i) if Form S-3 is not available for
such offering; or (ii) if the holders of the Registrable Securities, together with the holders of
any other securities of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price to the public of
less than $250,000. Registrations effected pursuant to this Section 2.3 shall not be counted as
Demand Registrations effected pursuant to Section 2.1.
3. REGISTRATION PROCEDURES.
3.1. FILINGS; INFORMATION. Whenever the Company is required to effect the registration of any
Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with the intended method(s) of
distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1. FILING REGISTRATION STATEMENT. The Company shall, as expeditiously as possible and in
any event within sixty (60) days after receipt of a request for a Demand Registration pursuant to
Section 2.1, prepare and file with the Commission a Registration Statement on any form for which
the Company then qualifies or which counsel for
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the Company shall deem appropriate and which form shall be available for the sale of all
Registrable Securities to be registered thereunder in accordance with the intended method(s) of
distribution thereof, and shall use its best efforts to cause such Registration Statement to become
and remain effective for the period required by Section 3.1.3; PROVIDED, HOWEVER, that the Company
shall have the right to defer any Demand Registration for up to sixty (60) days, and any Piggy-Back
Registration for such period as may be applicable to deferment of any demand registration to which
such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a
certificate signed by the Chief Executive Officer of the Company stating that, in the good faith
judgment of the Board of Directors of the Company, it would be materially detrimental to the
Company and its shareholders for such Registration Statement to be effected at such time; PROVIDED
FURTHER, HOWEVER, that the Company shall not have the right to exercise the right set forth in the
immediately preceding proviso more than once in any 365-day period in respect of a Demand
Registration hereunder.
3.1.2. COPIES. The Company shall, prior to filing a Registration Statement or prospectus, or
any amendment or supplement thereto, furnish without charge to the holders of Registrable
Securities included in such registration, and such holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration
Statement (in each case including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities included in such
registration or legal counsel for any such holders may request in order to facilitate the
disposition of the Registrable Securities owned by such holders.
3.1.3. AMENDMENTS AND SUPPLEMENTS. The Company shall prepare and file with the Commission
such amendments, including post-effective amendments, and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and in compliance with the provisions of the Securities Act until
all Registrable Securities and other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution set forth in such
Registration Statement or such securities have been withdrawn.
3.1.4. NOTIFICATION. After the filing of a Registration Statement, the Company shall
promptly, and in no event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing, and shall further
notify such holders promptly and confirm such advice in writing in all events within two (2)
business days of the occurrence of any of the following: (i) when such Registration Statement
becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes
effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the
Company shall take all actions required to prevent the entry of such stop order or to remove it if
entered); and (iv) any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional information or of the
occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of the securities covered by such Registration
Statement, such prospectus will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or
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necessary to make the statements therein not misleading, and promptly make available to the
holders of Registrable Securities included in such Registration Statement any such supplement or
amendment; except that before filing with the Commission a Registration Statement or prospectus or
any amendment or supplement thereto, including documents incorporated by reference, the Company
shall furnish to the holders of Registrable Securities included in such Registration Statement and
to the legal counsel for any such holders, copies of all such documents proposed to be filed
sufficiently in advance of filing to provide such holders and legal counsel with a reasonable
opportunity to review such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto, including documents
incorporated by reference, to which such holders or their legal counsel shall object.
3.1.5. STATE SECURITIES LAWS COMPLIANCE. The Company shall use commercially reasonable
efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement
under such securities or “blue sky” laws of such jurisdictions in the United States as the holders
of Registrable Securities included in such Registration Statement (in light of their intended plan
of distribution) may request and (ii) take such action necessary to cause such Registrable
Securities covered by the Registration Statement to be registered with or approved by such other
Governmental Authorities as may be necessary by virtue of the business and operations of the
Company and do any and all other acts and things that may be necessary or advisable to enable the
holders of Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions; PROVIDED, HOWEVER, that the
Company shall not be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3.1.5 or subject itself to taxation
in any such jurisdiction.
3.1.6. AGREEMENTS FOR DISPOSITION. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of such Registrable
Securities. The representations, warranties and covenants of the Company in any underwriting
agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall
also be made to and for the benefit of the holders of Registrable Securities included in such
registration statement. No holder of Registrable Securities included in such registration
statement shall be required to make any representations or warranties in the underwriting agreement
except, if applicable, with respect to such holder’s organization, good standing, authority, title
to Registrable Securities, lack of conflict of such sale with such holder’s material agreements and
organizational documents, and with respect to written information relating to such holder that such
holder has furnished in writing expressly for inclusion in such Registration Statement.
3.1.7. COOPERATION. The principal executive officer of the Company, the principal financial
officer of the Company, the principal accounting officer of the Company and all other officers and
members of the management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the preparation of the
Registration Statement with respect to such offering
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and all other offering materials and related documents, and participation in meetings with
Underwriters, attorneys, accountants and potential investors.
3.1.8. RECORDS. The Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter participating in any
disposition pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such Registration
Statement or any Underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to supply all information
requested by any of them in connection with such Registration Statement.
3.1.9. OPINIONS AND COMFORT LETTERS. The Company shall furnish to each holder of Registrable
Securities included in any Registration Statement a signed counterpart, addressed to such holder,
of (i) any opinion of counsel to the Company delivered to any Underwriter and (ii) any comfort
letter from the Company’s independent public accountants delivered to any Underwriter. In the
event no legal opinion is delivered to any Underwriter, the Company shall furnish to each holder of
Registrable Securities included in such Registration Statement, at any time that such holder elects
to use a prospectus, an opinion of counsel to the Company to the effect that the Registration
Statement containing such prospectus has been declared effective and that no stop order is in
effect.
3.1.10. EARNINGS STATEMENT. The Company shall comply with all applicable rules and
regulations of the Commission and the Securities Act, and make available to its shareholders, as
soon as practicable, an earnings statement covering a period of twelve (12) months, beginning
within three (3) months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11. LISTING. The Company shall use commercially reasonable efforts to cause all
Registrable Securities included in any registration to be listed on such exchanges or otherwise
designated for trading in the same manner as similar securities issued by the Company are then
listed or designated or, if no such similar securities are then listed or designated, in a manner
satisfactory to the holders of a majority of the Registrable Securities included in such
registration.
3.2. OBLIGATION TO SUSPEND DISTRIBUTION. Upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale
registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by the Company,
pursuant to a written xxxxxxx xxxxxxx compliance program adopted by the Company’s Board of
Directors, of the ability of all “insiders” covered by such program to transact in the Company’s
securities because of the existence of material non-public information, each holder of Registrable
Securities included in any registration shall immediately discontinue disposition of such
Registrable Securities pursuant to the Registration Statement covering such Registrable Securities
until such holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv)
or the restriction on the ability of
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“insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than permanent file copies
then in such holder’s possession, of the most recent prospectus covering such Registrable
Securities at the time of receipt of such notice.
3.3. REGISTRATION EXPENSES. The Company shall bear all costs and expenses incurred in
connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration
pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, and all
expenses incurred in performing or complying with its other obligations under this Agreement,
whether or not the Registration Statement becomes effective, including, without limitation: (i)
all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue
sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications
of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and employees); (v) the
fees and expenses incurred in connection with the listing of the Registrable Securities as required
by Section 3.1.11; (vi) National Association of Securities Dealers, Inc. fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated with the delivery
of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the fees and
expenses of any special experts retained by the Company in connection with such registration and
(ix) the fees and expenses of one legal counsel selected by the holders of a majority-in-interest
of the Registrable Securities included in such registration. The Company shall have no obligation
to pay any underwriting discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling commissions shall be
borne by such holders. Additionally, in an underwritten offering, all selling shareholders and the
Company shall bear the expenses of the underwriter pro rata in proportion to the respective amount
of shares each is selling in such offering.
3.4. INFORMATION. The holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the
preparation of any Registration Statement, including amendments and supplements thereto, in order
to effect the registration of any Registrable Securities under the Securities Act pursuant to
Section 2 and in connection with the Company’s obligation to comply with federal and applicable
state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and hold harmless each
Investor and each other holder of Registrable Securities, and each of their respective officers,
employees, affiliates, directors, partners, members, attorneys and agents, and each person, if any,
who controls an Investor and each other holder of Registrable Securities (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “INVESTOR INDEMNIFIED
PARTY”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether
joint or several, arising out of or based upon any untrue statement (or allegedly untrue statement)
of a material fact
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contained in any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or supplement thereto, or
arising out of or based upon any omission (or alleged omission) to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, or any violation
by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to
the Company and relating to action or inaction required of the Company in connection with any such
registration; and the Company shall promptly reimburse the Investor Indemnified Party for any legal
and any other expenses reasonably incurred by such Investor Indemnified Party in connection with
investigating and defending any such expense, loss, judgment, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the extent that any such
expense, loss, claim, damage or liability arises out of or is based upon any untrue statement or
allegedly untrue statement or omission or alleged omission made in such Registration Statement,
preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to the Company, in
writing, by such selling holder expressly for use therein.
4.2. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each selling holder of Registrable
Securities will, in the event that any registration is being effected under the Securities Act
pursuant to this Agreement of any Registrable Securities held by such selling holder, indemnify and
hold harmless the Company, each of its directors and officers and each underwriter (if any), and
each other person, if any, who controls the Company or such underwriter within the meaning of the
Securities Act, against any losses, claims, judgments, damages or liabilities, whether joint or
several, insofar as such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue statement of a
material fact contained in any Registration Statement under which the sale of such Registrable
Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained in the Registration Statement, or any amendment or supplement thereto,
or arise out of or are based upon any omission or the alleged omission to state a material fact
required to be stated therein or necessary to make the statement therein not misleading, if the
statement or omission was made in reliance upon and in conformity with information furnished in
writing to the Company by such selling holder expressly for use therein, and shall reimburse the
Company, its directors and officers, and each such controlling person for any legal or other
expenses reasonably incurred by any of them in connection with investigation or defending any such
loss, claim, damage, liability or action. Each selling holder’s indemnification obligations
hereunder shall be several and not joint and shall be limited to the amount of any net proceeds
(after payment of any underwriting fees, discounts, commissions or taxes) actually received by such
selling holder.
4.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by any person of any
notice of any loss, claim, damage or liability or any action in respect of which indemnity may be
sought pursuant to Section 4.1 or 4.2, such person (the “INDEMNIFIED PARTY”) shall, if a claim in
respect thereof is to be made against any other person for indemnification hereunder, notify such
other person (the “INDEMNIFYING
12
PARTY”) in writing of the loss, claim, judgment, damage, liability or action; PROVIDED,
HOWEVER, that the failure by the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such
Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually
prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to
any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it wishes, jointly with
all other Indemnifying Parties, to assume control of the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action, the Indemnifying
Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that in any action in which both the Indemnified Party
and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to
employ separate counsel (but no more than one such separate counsel) to represent the Indemnified
Party and its controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party,
with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the
written opinion of counsel of such Indemnified Party, representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to
entry of judgment or effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such judgment or settlement includes an
unconditional release of such Indemnified Party from all liability arising out of such claim or
proceeding.
4.4. CONTRIBUTION.
4.4.1. If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action
referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such
loss, claim, damage, liability or action in such proportion as is appropriate to reflect the
relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the
actions or omissions which resulted in such loss, claim, damage, liability or action, as well as
any other relevant equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
4.4.2. The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by PRO RATA allocation or by any
13
other method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding Section.
4.4.3. The amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities shall be
required to contribute any amount in excess of the dollar amount of the net proceeds (after payment
of any underwriting fees, discounts, commissions or taxes) actually received by such holder from
the sale of Registrable Securities which gave rise to such contribution obligation. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1. RULE 144. The Company covenants that it shall use its best efforts to file any reports
required to be filed by it under the Securities Act and the Exchange Act and shall take such
further action as the holders of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act, as such Rules may be amended from time to time, or any similar Rule or
regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
6.1. OTHER REGISTRATION RIGHTS. The Company represents and warrants that no person, other
than holders of the Registrable Securities, has any right to require the
Company to register any shares of the Company’s capital stock for sale or to include shares of the
Company’s capital stock in any registration filed by the Company for the sale of shares of capital
stock for its own account or for the account of any other person.
6.2. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and the rights, duties and
obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in
part. This Agreement and the rights, duties and obligations of the holders of Registrable
Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities
in conjunction with and to the extent of any transfer of Registrable Securities by any such holder.
This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of
each of the parties and their respective successors and the permitted assigns of the Investor or
holder of Registrable Securities or of any assignee of the Investor or holder of Registrable
Securities. This Agreement is not intended to confer any rights or benefits on any persons that
are not party hereto other than as expressly set forth in Article 4 and this Section 6.2.
6.3. NOTICES. All notices, demands, requests, consents, approvals or other communications
(collectively, “NOTICES”) required or permitted to be given hereunder or
14
which are given with respect to this Agreement shall be in writing and shall be personally
served, delivered by reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as
such party shall have specified most recently by written notice. Notice shall be deemed given on
the date of service or transmission if personally served or transmitted by telegram, telex or
facsimile; PROVIDED, that if such service or transmission is not on a business day or is after
normal business hours, then such notice shall be deemed given on the next business day. Notice
otherwise sent as provided herein shall be deemed given on the next business day following timely
delivery of such notice to a reputable air courier service with an order for next-day delivery.
To the Company:
Santa Xxxxxx Media Corporation
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Xxxx & Xxxxx Professional Corporation
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
To an Investor, to the address set forth beneath such Investors name on the signature page
attached hereto.
To Citigroup Global Markets Inc.:
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
6.4. SEVERABILITY. This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall
15
be added as a part of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and enforceable.
6.5. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which taken together shall constitute one and the same
instrument.
6.6. ENTIRE AGREEMENT. This Agreement (including all agreements entered into pursuant hereto
and all certificates and instruments delivered pursuant hereto and thereto) constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, representations, understandings, negotiations and discussions between
the parties, whether oral or written.
6.7. MODIFICATIONS AND AMENDMENTS. No amendment, modification or termination of this
Agreement shall be binding upon any party unless executed in writing by such party.
6.8. TITLES AND HEADINGS. Titles and headings of sections of this Agreement are for
convenience only and shall not affect the construction of any provision of this Agreement.
6.9. WAIVERS AND EXTENSIONS. Any party to this Agreement may waive any right, breach or
default which such party has the right to waive, PROVIDED that such waiver will not be effective
against the waiving party unless it is in writing, is signed by such party, and specifically refers
to this Agreement. Waivers may be made in advance or after the right waived has arisen or the
breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of
any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding
breach thereof nor of any other agreement or provision herein contained. No waiver or extension of
time for performance of any obligations or acts shall be deemed a waiver or extension of the time
for performance of any other obligations or acts.
6.10. REMEDIES CUMULATIVE. In the event that the Company fails to observe or perform any
covenant or agreement to be observed or performed under this Agreement, the Investor or any other
holder of Registrable Securities may proceed to protect and enforce its rights by suit in equity or
action at law, whether for specific performance of any term contained in this Agreement or for an
injunction against the breach of any such term or in aid of the exercise of any power granted in
this Agreement or to enforce any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers or remedies conferred
under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be
cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement
or now or hereafter available at law, in equity, by statute or otherwise.
16
6.11. GOVERNING LAW. This Agreement shall be governed by, interpreted under, and construed in
accordance with the internal laws of the State of New York applicable to agreements made and to be
performed within the State of New York, without giving effect to any choice-of-law provisions
thereof that would compel the application of the substantive laws of any other jurisdiction.
6.12. WAIVER OF TRIAL BY JURY. Each party hereby irrevocably and unconditionally waives the
right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based on
contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the
transactions contemplated hereby, or the actions of the Investor in the negotiation,
administration, performance or enforcement hereof.
6.13. WAIVER OF MONETARY DAMAGES. Notwithstanding anything herein to the contrary,
each Investor hereby waives
any right to make any claim for monetary damages arising from the Company’s failure to effect the registration
of any Registrable Securities or if a current prospectus is not on file with the Commission with respect thereto, provided
the Company has fulfilled its obligation to use its best efforts to do so in accordance herewith.
[Remainder of Page Intentionally Left Blank.]
17
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed
and delivered by their duly authorized representatives as of the date first written above.
| SANTA XXXXXX MEDIA CORPORATION | ||||
| A Delaware corporation | ||||
| By: | ||||
| INVESTORS: | ||||
| SANTA XXXXXX CAPITAL PARTNERS, LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000 | ||||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||||
| Xxxxx Xxxxx | ||||
| 000 Xxxxxxxx Xxx | ||||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||||
| Xxxxxx Xxxxxxx | ||||
| 0000 Xxxx Xxxxx Xxxxx | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| Xxxxxx Xxxxxxx | ||||
| 0000 Xxxxx Xxxxx Xxxxx | ||||
| Xxxxx, Xxxxxxxx 00000 | ||||
| Xxxxxxx Xxxxxxxxx | ||||
| 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 | ||||
| Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 | ||||
18
| Xxxx Xxxxxx | ||||
| [ ] | ||||
| Xxxxx Xxxxxx | ||||
| [ ] | ||||
| Xxxxxxx Xxxxxx | ||||
| [ ] | ||||
| Xxxxx X. Xxxxxxxx, Esq. | ||||
| c/o Xxxx & Xxxxx Professional Corporation | ||||
| 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx | ||||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||||
[Signature Page to Registration Rights Agreement]
19
