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REGISTRATION RIGHTS AGREEMENT

Registration Rights Agreement

REGISTRATION RIGHTS AGREEMENT

 

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NEW SKIES SATELLITES HOLDINGS, LTD.

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Title: REGISTRATION RIGHTS AGREEMENT
Governing Law: New York     Date: 5/17/2005
Law Firm: Simpson Thacher & Bartlett LLP    

REGISTRATION RIGHTS AGREEMENT

 

, Parties: new skies satellites holdings  ltd.
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Exhibit 10.1

 

 

 

REGISTRATION RIGHTS AGREEMENT

 

Concerning

 

NEW SKIES SATELLITES HOLDINGS, LTD.

 


 

 

Dated as of May 13, 2005

 

 

 

 

Registration Rights Agreement

 



 

TABLE OF CONTENTS

 

Section 1. Definitions

 

 

 

 

Section 2. Registration Under the Securities Act

 

(a)

Required Registration

 

(b)

Incidental Registration

 

(c)

Expenses

 

(d)

Effective Registration Statement; Suspension

 

(e)

Selection of Underwriters

 

 

 

 

Section 3. Restrictions on Public Sale

 

 

 

 

Section 4. Registration Procedures

 

 

 

 

Section 5. Indemnification; Contribution

 

 

 

 

(a)

Indemnification by the Company

 

(b)

Indemnification by Holders

 

(c)

Conduct of Indemnification Proceedings

 

(d)

Contribution

 

 

 

 

Section 6. Miscellaneous

 

 

 

 

(a)

No Inconsistent Agreements

 

(b)

Amendments and Waivers

 

(c)

Investor Action

 

(d)

Notices

 

(e)

Successors and Assigns

 

(f)

Recapitalizations, Exchanges, etc., Affecting Registrable Securities

 

(g)

Relative Registration Rights.

 

(h)

Counterparts

 

(i)

Descriptive Headings, etc.

 

(j)

Severability

 

(k)

Governing Law

 

(l)

Specific Performance

 

(m)

Jurisdiction

 

(n)

Waiver of Jury Trial

 

(o)

Entire Agreement

 

 

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REGISTRATION RIGHTS AGREEMENT, dated as of May 13, 2005 (the “ Agreement ”), by and between New Skies Satellites Holdings Ltd., a limited liability company organized under the laws of Bermuda (the “ Company ”), the Blackstone Investors (as hereinafter defined), and the Senior Managers (as hereinafter defined) and any other Person that shall from and after the date hereof acquire or otherwise be the transferee of any Registrable Securities and who shall become a signatory hereto (herein referred to collectively as the “ Holders ” and individually as a “ Holder ”).

 

WHEREAS, the Company has agreed to provide registration rights on the terms and subject to the conditions provided herein.

 

NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:

 

Section 1 .   Definitions .

 

As used in this Agreement, the following terms shall have the following meanings:

 

Affiliate ” shall have the meaning ascribed thereto in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof.

 

Blackstone Investors ” shall mean the parties identified on the signature pages hereto as a “Blackstone Investor”.

 

Company ” shall have the meaning set forth in the preamble and shall also include the Company’s successors.

 

Company Notice ” shall have the meaning set forth in Section 2(b)(i).

 

Eligible Holders ” shall have the meaning set forth in Section 2(b)(i).

 

Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

Family Trust ” means a trust solely for the benefit of a Senior Manager and any member of the immediate family of such Senior Manager (which shall mean, any parent, spouse, child or other lineal descendants (including by adoption), brother or sister thereof or any spouse of any of the foregoing), (ii) each trust created for the benefit of a Senior Manager or in which one or more members of such Senior Manager’s immediate family has a beneficial interest and (iii) any Person who is controlled by any such immediate family member or trust (including each custodian of property for one or more such Persons).

 

Holder ” shall have the meaning set forth in the preamble.

 



 

Incidental Registration ” shall mean a registration required to be effected by the Company pursuant to Section 2(b).

 

Incidental Registration Statement ” shall mean a registration statement of the Company as provided in Section 2(b), which covers any of the Registrable Securities on an appropriate form in accordance with the Securities Act and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

 

IPO ” means an initial firm commitment underwritten public offering of Securities pursuant to an effective registration statement under the Securities Act, other than pursuant to a registration statement on Form S-4 or Form S-8 or other limited purpose form.

 

Law ” means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.

 

Majority Holders ” shall mean Holders of Securities representing in the aggregate a majority of the aggregate number of outstanding Securities beneficially owned by all Holders.

 

Management Representative ” shall mean Daniel S. Goldberg.

 

NASD ” shall mean the National Association of Securities Dealers, Inc.

 

Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

 

Prospectus ” shall mean the prospectus included in a Registration Statement, including any preliminary Prospectus, and any such Prospectus as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities and by all other amendments and supplements to such Prospectus, including post-effective amendments, and in each case including all material incorporated by reference therein.

 

Registrable Securities ” shall mean (i) any Shares acquired by any Holder and (ii) any securities of the Company issued or issuable directly or indirectly with respect to or in exchange, or substitution for, or conversion of the securities referred to in clause (i) above by way of dividend or distribution, recapitalization, merger, consolidation, exchange or other reorganization.  As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when they have been distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a broker, dealer or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force).

 

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Registration Expenses ” shall mean all (i) registration, qualification and filing fees, (ii) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of a qualified independent underwriter, if any, counsel in connection therewith and the reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), (iii) printing expenses, (iv) internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees performing legal or accounting duties), (v) fees and disbursements of counsel for the Company, (vi) customary fees and expenses for independent certified public accountants retained by the Company (including the expenses of any comfort letters or costs associated with the delivery by independent certified public accountants of a comfort letter or comfort letters), (vii) fees and expenses of any special experts retained by the Company in connection with such registration, (viii) reasonable fees and expenses of one separate firm of attorneys for the Holders (which counsel shall be selected by the Holders selling securities constituting a majority of all securities to be included in such registration) and (ix) fees and expenses of listing the Registrable Securities on a securities exchange; but shall not include any Selling Expenses.

 

Registration Statement ” shall mean any registration statement of the Company which covers any Registrable Securities and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

 

Request ” shall have the meaning set forth in Section 2(a)(i)(A).

 

Required Registration ” shall mean any registration required to be effected pursuant to Section 2(a)(i)(A).

 

Required Registration Statement ” shall mean a Registration Statement which covers the Registrable Securities requested to be included therein pursuant to a Required Registration on an appropriate form pursuant to the Securities Act (including pursuant to Rule 415 thereunder or any similar rule then in force), and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

 

SEC ” shall mean the United States Securities and Exchange Commission.

 

Securities ” or “ Shares ” shall mean the ordinary shares or common shares of the Company.

 

Securities Act ” means the Securities Act of 1933, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

 

Selling Expenses ” shall mean underwriting discounts, selling commissions and stock transfer taxes applicable to the Securities registered by the Holders.

 

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Senior Managers ” shall mean the parties identified on the signature pages hereto as “Senior Managers”.

 

Shelf Registration ” shall have the meaning set forth in Section 2(a)(i)(A).

 

Underwriter ” shall have the meaning set forth in Section 5(a).

 

Underwritten Offering ” shall mean a sale of securities of the Company to an Underwriter or Underwriters for reoffering to the public.

 

Section 2 .   Registration Under the Securities Act .

 

(a) Required Registration .

 

(i)                                      Right to Require Registration .

 

(A)  At any time after the date of this Agreement, the Blackstone Investors shall have the right to deliver a request in writing to the Company (a “ Request ”) (which Request shall specify the Registrable Securities intended to be disposed, the identity of the Person(s) within the Blackstone Investors intending to dispose of such Registrable Securities, and the intended method of distribution thereof) that the Company register the Registrable Securities held by the specified Person(s) within the Blackstone Investors (including, if available, by means of a shelf offering pursuant to Rule 415 under the Securities Act (or any similar rule then in force) (a “ Shelf Registration ”)) by filing with the SEC a Required Registration Statement.

 

(B)  Upon the receipt of any Request by the Blackstone Investors in which the Blackstone Investors are proposing to sell Registrable Securities, the Company will, subject to the other provisions of this Section 2(a), not later than the 60th day after the receipt of such a Request by the Company cause to be filed with the SEC a Required Registration Statement covering the Registrable Securities which the Company has been so requested to register in such Request, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of distribution thereof specified in such Request or further requests.
 

(C)  Upon the receipt of any Request, the Company will, by the tenth day thereafter, give written notice of such requested registration to all Holders of Registrable Securities, and each such Holder shall be entitled to notify the Company within ten days of receipt of notice of such Request of such Holder’s election to include all or a portion of its Registrable Securities in such registration.  Not later than the 60th day after the receipt of such a Request by the Company, the Company will, subject to the other provisions of this Section 2(a), cause to be filed with the SEC a Required Registration Statement covering the Registrable Securities which the Company has been so requested to register in such Request and all other Registrable Securities which the Company has been requested to register by Holders thereof other than the Holder(s) who are

 

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members of the Blackstone Investors initiating such Request, all to the extent necessary to permit the disposition of such Registrable Securities so to be registered in accordance with the intended methods of distribution thereof specified in such Request or further requests.

 

(D)  For any Required Registration Statement prepared and filed pursuant to Section 2(a)(i), the Company shall use all reasonable efforts to have such Required Registration Statement declared effective by the SEC as soon as practicable after the filing of such Required Registration Statement and to keep such Required Registration Statement continuously effective (x) for a period of at least 60 days, in the case of a Required Registration other than a Shelf Registration (or, in the case of an Underwritten Offering, such period as the Underwriters shall reasonably require) following the date on which such Required Registration Statement is declared effective (or such shorter period which will terminate when all of the Registrable Securities covered by such Required Registration Statement have been sold pursuant thereto) or (y) until all of the Registrable Securities that are the subject of such Required Registration Statement have been disposed of pursuant thereto, in the case of a Shelf Registration, including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder.

 

(E)  The Company shall not be required to effect, pursuant to this Section 2(a)(i), (w) more than one Required Registration within any continuous three month period, or (x) any Underwritten Offering covering Registrable Securities with gross proceeds reasonably expected by the Holders to be less than $25 million.  The Senior Managers shall have no right to, and shall not, make a Request that the Company effect a Required Registration under Section 2(a)(i)(A) at any time; provided , however , that nothing herein shall limit or restrict the Senior Managers rights under Section 2(a)(i)(C) or 2(b)(i). For the avoidance of doubt, subject to this Section 2(a)(i)(E), the Blackstone Investors shall not be limited as to the number of Required Registrations which it is entitled to request under this Section 2(a)(i).
 
(F)  A Request may be withdrawn prior to the filing of the Required Registration Statement by the Blackstone Investors who made such Request and a Required Registration Statement may be withdrawn prior to the effectiveness thereof by the Holders of a majority of the Registrable Securities included therein, and, in either such event, such withdrawal shall not be treated as a Required Registration for purposes of clause (w) of the immediately preceding paragraph.

 

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(G)  The registration rights granted pursuant to the provisions of this Section 2(a)(i) shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.
 

(ii)                                   Priority in Required Registrations .  If a Required Registration pursuant to this Section 2(a) involves an Underwritten Offering, and the sole Underwriter or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder requesting registration) that, in its opinion, the amount of Registrable Securities requested to be included in such Required Registration exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, the Company will include in such Required Registration only the amount of Registrable Securities that the Company is so advised can be sold in such offering without so adversely affecting such distribution; provided , however , that the Company shall be required to include in such Required Registration first , all Registrable Securities requested to be included in the Required Registration by the Blackstone Investors and, if any, the Senior Managers and, to the extent not all such Registrable Securities can be included in such Required Registration, the number of Registrable Securities to be included shall be allocated pro rata among the Blackstone Investors and the Senior Managers on the basis of the number of Registrable Securities requested to be included in such Required Registration by each such Blackstone Investor or Senior Manager or on such other basis as shall be agreed among the Blackstone Investors and the Management Representative (if the Senior Managers have requested Registrable Securities to be included in the Required Registration); second , all Registrable Securities requested to be included in such Required Registration by the other Holders and, to the extent not all such Registrable Securities can be included in such Required Registration, the number of Registrable Securities to be included shall be allocated pro rata among such other Holders on the basis of the number of Registrable Securities requested to be included in such Required Registration by each such Holder and third , all other securities requested, in accordance with any registration rights which are granted in compliance with Section 6(a), to be included in such Required Registration which are of the same class as the Registrable Securities otherwise to be included in such Required Registration and, to the extent not all such securities can be included in such Required Registration, the number of securities to be included shall be allocated pro rata among the holders thereof requesting inclusion in such Required Registration on the basis of the number of securities requested to be included by all such holders.

 

(b)   Incidental Registration .

 

(i)                                      Right to Include Registrable Securities .  If at any time after the date hereof, the Company proposes to register any Securities under the Securities Act (other than (A) any registration of public sales or distributions solely by and for the account of the Company of securities issued (x) pursuant to any employee benefit or similar plan or any dividend reinvestment plan or (y) in any acquisition by the Company or financing thereof, or (B) pursuant to Section 2(a) hereof (it being understood that such Section 2(a) provides for incidental registration rights with respect to registrations conducted thereunder)) in connection with a primary offering for cash for the account of

 

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the Company or any secondary offering, the Company will, each time it intends to effect such a registration, subject to the following qualifications, give written notice (the “ Company Notice ), to all Holders of Registrable Securities (including the Blackstone Investors and the Senior Managers), at least ten but no more than 45 days prior to the expected initial filing of a Registration Statement with the SEC pertaining thereto, informing such Holders entitled to receive the Company Notice (the “ Eligible Holders ”) of its intent to file such Registration Statement, the expected filing date, and of the Eligible Holders’ rights to request the registration of the Registrable Securities held by the Eligible Holders under this Section 2(b).  Upon the written request of any such Eligible Holder made within fifteen days after any such Company Notice is given (which request shall specify the Registrable Securities intended to be disposed of by such Eligible Holder and, unless the applicable registration is intended to effect a primary offering of Securities for cash for the account of the Company, the intended method of distribution thereof), the Company will use all reasonable efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by such Eligible Holders to the extent required to permit the disposition (in accordance with the intended methods of distribution thereof or, in the case of a registration which is intended to effect a primary offering for cash for the account of the Company, in accordance with the Company’s intended method of distribution) of the Registrable Securities so requested to be registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Incidental Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Incidental Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Incidental Registration Statement or by the Securities Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided, however , that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Incidental Registration Statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of all of the securities to be registered under such Incidental Registration Statement, the Company may, at its election, give written notice of such determination to each Eligible Holder and, thereupon, (A) in the case of a determination not to register, the Company shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses incurred in connection therewith), and (B) in the case of a determination to delay such registration, the Company shall be permitted to delay registration of any Registrable Securities requested to be included in such Incidental Registration Statement for the same period as the delay in registering such other securities to be included therein.

 

The registration rights granted pursuant to the provisions of this Section 2(b)(i) shall be in addition to the registration rights granted pursuant to the other provisions of this Section 2.

 

(ii)                                   Priority in Incidental Registrations .  If a registration pursuant to this Section 2(b) involves an Underwritten Offering of the securities so being registered, whether or not for sale for the account of the Company, and the sole Underwriter or the

 

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lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder of Registrable Securities requesting registration) that, in its opinion, the amount of securities (including Registrable Securities) requested to be included in such registration exceeds the amount which can be sold in (or during the time of) such offering without adversely affecting the distribution of the securities being offered, then the Company will be required to include in such registration, first , all the securities entitled to be sold pursuant to such Registration Statement without reference to the incidental registration rights of any holder (including Holders); second all Registrable Securities requested to be included in the Underwritten Offering by the Blackstone Investors and the Senior Managers and, to the extent not all such Registrable Securities can be included in such Underwritten Offering, the number of Registrable Securities to be included shall be allocated pro rata among the Blackstone Investors and the Senior Managers on the basis of the number of Registrable Securities requested to be included in the Underwritten Offering by the Blackstone Investors and the Senior Managers or on such other basis as shall be agreed among the Blackstone Investors and the Management Representative (if the Senior Managers have requested Registrable Securities to be included in such Required Registration) (provided that, the provisions under this clause “ second ” shall have priority over the foregoing clause “ first ” if Blackstone gives notice to the Company that Blackstone is electing to have the applicable Underwritten Offering constitute a Required Registration); third , all Registrable Securities requested to be included in such Underwritten Offering by the other Holders and, to the extent not all such Registrable Securities can be included in such Underwritten Offering, the number of Registrable Securities to be included shall be allocated pro rata among such other Holders on the basis of the number of Registrable Securities requested to be included in such Underwritten Offering by all such Holders and fourth , all other securities requested, in accordance with any registration rights which are granted in compliance with Section 6(a), to be included in such Underwritten Offering which are of the same class as the Registrable Securities otherwise to be included in such Required Registration and, to the extent not all such securities can be included in such Underwritten Offering, the number of securities to be included shall be allocated pro rata among the holders thereof requesting inclusion in such Underwritten Offering on the basis of the number of securities requested to be included by all such holders; provided , however , that in the event the Company will not, by virtue of this paragraph, include in any such registration all of the Registrable Securities of any Holder requested to be included in such registration, such Holder may, upon written notice to the Company given within three days of the time such Holder first is notified of such matter, reduce the amount of Registrable Securities it desires to have included in such registration, whereupon only the Registrable Securities, if any, it desires to have included will be so included and the Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable Securities to be included in such registration.

 

(c)   Expenses .  The Company agrees to (i) pay all Registration Expenses in connection with each of the registrations requested pursuant to Section 2(a) and (ii) pay all Registration Expenses in connection with each registration as to which Holders request inclusion of Registrable Securities pursuant to Section 2(b).  All Selling Expenses relating to securities

 

8



 

registered on behalf of Holders shall be borne by the Holders of securities included in such registration pro rata on the basis of the number of such Holders’ securities so registered.

 

(d)   Effective Registration Statement; Suspension .  Subject to Section 2(a)(i)(F), a Registration Statement pursuant to Section 2(a) will not be deemed to have become effective (and the related registration will not be deemed to have been effected) unless it has been declared effective by the SEC or, in the case of a Registration Statement filed pursuant to Rule 415 (or any similar rule then in force) in connection with a Shelf Registration, unless Registrable Securities have been disposed of pursuant thereto, prior to a request by the Holders of a majority of the Registrable Securities included in such registration that such Registration Statement be withdrawn; provided , however , that if, after it has been declared effective, the offering of any Registrable Securities pursuant to such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective and the related registration will not be deemed to have been effected.

 

(e)   Selection of Underw


 
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