EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into
this 15th day of March, 1999, by and among GO2NET, INC., a Delaware corporation
(the "Company"), and VULCAN VENTURES INCORPORATED, a Washington corporation
("Vulcan").
A. Concurrently with the execution of this Agreement, Vulcan is
purchasing 167,507 shares of the Company's Series A Convertible Preferred Stock,
$.01 par value (the "Series A Preferred Stock"), pursuant to that certain Stock
Purchase Agreement dated March 15, 1999, between the Company and Vulcan (the
"Stock Purchase Agreement"). The Stock Purchase Agreement also contemplates
Vulcan's acquisition of additional shares of the Series A Preferred Stock and
certain shares of the Company's Common Stock, $.01 par value (the "Common
Stock").
B. The parties hereto desire to set forth the respective rights of the
Company and Vulcan with respect to the registration of the shares of the
Company's Common Stock that Vulcan may acquire.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises contained herein, the parties hereto agree as follows:
1. Definitions.
1.1 As used in this Agreement, the following capitalized terms
shall have the following meanings:
Affiliate: A Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, Vulcan;
provided that such control relationship involves direct or indirect
ownership of at least a majority of the outstanding voting interests of
the applicable Person. Without limiting the generality of the foregoing,
it is understood that any entity that is majority owned (directly or
indirectly) by a Person that directly or indirectly owns a majority of the
outstanding voting interests of Vulcan shall be an Affiliate of Vulcan.
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Common Stock: All shares now or hereafter authorized of any class of common stock of
the Company, and any other equity securities of the Company,
howsoever designated, which have the right (subject always to prior
rights of any class or series of preferred shares) to participate in the
distribution of the assets and the earnings of the Company without limit
as to per share amount.
Exchange Act: The Securities Exchange Act of 1934, as amended from time to time.
Holders: Vulcan, all of its Affiliates (including without
limitation Xxxx X. Xxxxx), any Person to which
Common Stock is transferred by Vulcan and its
Affiliates for purposes of Xxxx X. Xxxxx'x estate
planning, and any Person to which Common Stock is
transferred by Vulcan and its Affiliates that has
registration rights pursuant to Section 10 below.
Majority Holders: Holders of a majority of the Registrable Securities held by all Holders
at the time of any request for registration pursuant to Section 2.1(a).
Person: An individual, corporation, partnership, limited liability company, trust,
unincorporated organization or a government or any agency or political
subdivision thereof.
Prospectus: The definitive prospectus included in any
Registration Statement, as amended or supplemented
by any prospectus supplement with respect to the
terms of the offering of any portion of the
Registrable Securities covered by the Registration
Statement and by all other amendments and
supplements to the prospectus, including
post-effective amendments and all material
incorporated by reference in such prospectus.
Registrable Securities: Those shares of Common Stock now or
hereafter owned of record or beneficially by the
Holders (including, without limitation, any shares
of Common Stock acquired by the Holders upon
conversion of the Series A Preferred Stock) plus
any shares received from the Company with respect
to or in replacement of such shares by reason of
splits, dividends and recapitalizations and other
changes in the Company's capital structure , but
excluding any shares which may be then
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immediately sold to the public without
registration pursuant to Rule 144 under the
Securities Act.
Registration Expenses: See Section 6 hereof.
Registration Statement: Any registration statement of the
Company filed under the Securities Act which
covers Registrable Securities pursuant to the
provisions of this Agreement, including the
Prospectus, amendments and supplements to such
Registration Statement, including post-effective
amendments, all exhibits and all material
incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended from time to time.
Selling Holders: Holders of Registrable Securities who seek to sell such securities under
any Registration Statement.
2. Registration Rights.
2.1 Registration Upon Request.
(a) At any time beginning 180 days after the date hereof, the
Majority Holders may request by written notice (a "Demand Notice") to the
Company that the Company effect the registration under the Securities Act of a
number of Registrable Securities at least equal to 5% of the shares of the
Common Stock then outstanding, stating the intended method of disposition of
such shares. The registration rights contemplated by this Section 2.1 may be
exercised only three (3) times by the Majority Holders during the term of this
Agreement; provided, however, the request for registration shall not be deemed
made if either (i) the Registration Statement does not become effective under
the Securities Act (including without limitation if the Selling Holders withdraw
the Registration Statement, provided in case of such withdrawal the request for
registration will be deemed made unless the Selling Holders reimburse the
Company for its reasonable expenses in connection with such Registration
Statement) or a stop order, injunction or other order interferes or prevents the
contemplated method of distribution or (ii) the number of Registrable Securities
requested to be included in the registration is reduced by 15% or more pursuant
to Section 2.1(c). Within five (5) business days after receipt of a Demand
Notice, the Company shall notify all other Holders and offer to them the
opportunity to include their Registrable Securities in such registration.
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(b) Upon receipt of such request, the Company shall, as soon
as practicable, prepare and file a Registration Statement with the SEC on an
appropriate form under the Securities Act with respect to all of the Registrable
Securities that Holders of such securities have requested that the Company
register, and use its best efforts to cause such Registration Statement to
become effective.
(c) In connection with any Registration Statement filed in
response to such request, the Company, at its option, may include a primary
offering of additional shares of Common Stock and/or may include shares to be
sold by other stockholders of the Company; provided, however, that if the
managing underwriter of such offering reasonably determines in good faith and
delivers to the Selling Holders a written opinion that the number of shares
otherwise to be included in the Registration Statement is such that the success
of the underwritten offering would be materially and adversely affected and,
accordingly, the total number of shares to be included in the Registration
Statement is reduced to the amount recommended by such underwriter, then (i)
unless the Registration Statement includes all of the Registrable Securities
designated for sale by all Selling Holders participating in the demand
registration pursuant to Section 2.1(a), the Registration Statement shall not
include any shares to be offered by the Company or sold by other stockholders
(including other Holders exercising incidental registration rights pursuant to
Section 2.2), and (ii) if the Registration Statement does not include all of the
Registrable Securities designated for sale by such Selling Holders, the number
of Registrable Securities included in the Registration Statement shall be
allocated among such Selling Holders pro rata (based on the number of
Registrable Securities held by each).
(d) Notwithstanding the foregoing, upon delivery of written
notice (deliverable no later than 10 days after delivery of the Demand Notice)
to the person(s) who delivered the Demand Notice, the Company shall be entitled
to postpone filing of the Registration Statement, and may withhold efforts to
cause the Registration Statement to become effective, for a reasonable period of
time (not to exceed the shorter of 90 days or the Company's termination of
consideration of a Company Offering (as defined below) or completion of any
Transaction (as defined below), as the case may be) if (i) the Company is
contemplating filing a registration statement in connection with the offering of
its securities (a "Company Offering") within 90 days of delivery of the Demand
Notice, or (ii) the Company determines in good faith that a registration
pursuant to the Demand Notice might interfere with or adversely affect the
negotiations or completion of any transaction that is being contemplated by the
Company at the time the right to delay is exercised (a "Transaction").
2.2 Incidental Registration. (a) If at any time after the date
hereof the Company proposes to register any shares of Common Stock under the
Securities Act (except pursuant to a registration statement filed on Form S-8 or
Form S-4 or such other form as shall be prescribed under the Securities Act for
the same purposes, or a registration statement filed on Form S-3 covering
exclusively shares issued in acquisitions pursuant to Section 4(2) under the
Securities Act), or if any other stockholder is being afforded an opportunity to
register shares of Common Stock (including pursuant to Section 2.1(a)), the
Company will at each such time give
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written notice to the Holders (other than Holders participating in a demand
registration pursuant to Section 2.1(a)) as provided in Section 11.4 hereof of
its intention to do so. Within twenty (20) days after receipt of such notice,
such Holders may request that the Company register all or part of the
Registrable Securities, stating in such request the intended method of
distribution of such securities (the "Designated Securities"). Upon receipt of
such request, the Company shall use its best efforts to effect the registration
of the Designated Securities by including the Designated Securities in such
Registration Statement.
(b) In the event that securities of the same class as the
Registrable Securities are being registered by the Company in such Registration
Statement and such securities as well as any of the Designated Securities are to
be distributed in an underwritten offering, such Designated Securities shall be
included in such underwritten offering on the same terms and conditions as the
securities being issued by the Company for distribution pursuant to such
underwritten offering; provided, however, that if the managing underwriter of
such underwritten offering reasonably determines in good faith and advises the
parties that the inclusion in such underwritten offering of all the Designated
Securities would materially and adversely affect the success of the underwritten
offering, then the number of Designated Securities to be included in the
Registration Statement shall be reduced to the amount recommended in good faith
by and set forth in the opinion of such managing underwriter; provided, further,
that as to the Selling Holders exercising incidental registration rights
pursuant to this Section 2.2, such reduction shall be pro rata (based on the
number of shares held by each) with respect to the Designated Securities with
other Persons holding contractual incidental or "piggy-back" registration rights
in such underwritten offering.
(c) No registration effected under this Section 2.2 shall
relieve the Company of its obligations to effect registrations at the request of
the Holders under Section 2.1.
3. Hold-Back Agreements.
3.1 Restrictions on Public Sale by Holders. Each Selling
Holder whose Registrable Securities are covered by a Registration Statement
filed pursuant to Section 2 hereof agrees, if requested by the managing
underwriters in an underwritten offering, not to effect any public sale or
distribution of securities of the Company of the same class as the securities
included in such Registration Statement during a period, not to exceed 90 days,
beginning on the closing date of each underwritten offering made pursuant to
such Registration Statement, to the extent timely notified in writing by the
managing underwriters.
3.2 Restrictions on Public Sale by the Company and Others. The
Company agrees not to effect any public sale or distribution of its Common
Stock, during a period, not to exceed 45 days, beginning on the closing date of
an underwritten offering made pursuant to a Registration Statement filed under
Section 2 hereof to the extent timely notified in writing by the managing
underwriters (except as part of such underwritten registration or pursuant to
registrations on Forms S-4 or S-8 or any successor form to such Forms).
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4. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company will use its
best efforts to effect such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company will:
4.1 Preparation of Registration Statement. Prepare and file
with the SEC, within the time periods specified in Section 2, a Registration
Statement on such form as may be appropriate under the Securities Act, and use
its best efforts to cause such registration Statement to become effective.
4.2 Maintaining Effectiveness. Promptly prepare and file with
the SEC such amendments to the Registration Statement as may be necessary to
keep such Registration Statement effective for a period of not more than 180
days (or, in the case of an underwritten offering, no more than 5 business
days), or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold.
4.3 Notification. Immediately notify the Selling Holders and
the managing underwriters, if any, and (if requested by any such Person) confirm
such advice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceeding for that
purpose, (iii) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and (iv) of the happening of any event which makes any statement
made in the Registration Statement, the Prospectus or any document incorporated
therein by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus, or any document incorporated therein by
reference so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statement therein not misleading.
4.4 Stop Orders. Make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
or the qualification of any Registrable Securities for sale in any jurisdiction
at the earliest possible moment.
4.5 Consultation with Holders. Prior to the filing of any
Registration Statement or amendment thereto, provide copies of such document to
the Selling Holders and to the managing underwriters, if any, make the Company's
representatives and the Company's counsel available for discussion of such
document and make such changes in such document relating to the Selling Holders
prior to the filing thereof as such Selling Holders, counsel for such Selling
Holders, or underwriters may reasonably request.
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4.6 Copies of Registration Statements. Furnish to each Selling
Holder and each managing underwriter, if any, without charge, at least one
originally executed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference).
4.7 Prospectuses. Deliver to each Selling Holder and the
underwriters, if any, without charge, as many copies of the Prospectus (and each
preliminary prospectus) and any amendment or supplement thereto as such Persons
may reasonably request so long as the Registration Statement to which such
Prospectus or any amendment or supplement thereto relates is effective.
4.8 Blue Sky Laws. Prior to any public offering of Registrable
Securities, use its best efforts to register or qualify or cooperate with the
Selling Holders, the underwriters, if any, and their respective counsel in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
within the United States as any Selling Holder or underwriter reasonably
requests, and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the Registration Statement; provided, however, that the Company will
not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to general
service of process or taxation in any such jurisdiction where it is not then so
subject.
4.9 Amendments Upon Changes. Upon the occurrence of any event
contemplated by Sections 4.3(ii), (iii) or (iv) or 4.4 above, prepare, as
promptly as practicable, a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading.
4.10 Underwriting Agreements. Enter into such customary
agreements (including an underwriting agreement) and take all such other actions
reasonably required in connection therewith in order to expedite or facilitate
the disposition of such Registrable Securities.
4.11 Compliance with Laws; Section 11(a). Otherwise use its
best efforts to comply with all applicable federal and state securities laws
(including without limitation the rules and regulations of the SEC), and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act no later than 45 days after
the end of each 12-month period (or within 90 days after the end of a fiscal
year).
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4.12 Opinions. At the request of any Selling Holder, use its
best efforts to furnish on the date that the Registrable Securities are
delivered to that Holder and any underwriter for sale in connection with a
registration pursuant to this Agreement (i) an opinion of the counsel
representing the Company for the purposes of such registration, and (ii) a
letter from the independent certified public accountants of the Company, each
dated such date and in form and substance as is customarily given by counsel and
independent certified public accountants to underwriters in an underwritten
public offering, addressed to any Selling Holders' underwriter and to the
Selling Holders.
5. Selling Holders' Obligations.
5.1 Provision of Information. The Company may require each
Selling Holder of Registrable Securities as to which any registration is being
effected to furnish to the Company such information regarding the distribution
of such securities by, and such other information relevant to, the Selling
Holder for inclusion in such Registration Statement, as the Company may from
time to time reasonably request in writing.
5.2 Discontinued Use of Prospectus. Each Holder of Registrable
Securities agrees by execution of this Agreement that, upon receipt of any
written notice from the Company of the happening of any event of the kind
described in clauses (ii), (iii) or (iv) of Section 4.3 or Section 4.4 hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4.9 hereof, or until it is advised in writing
(the "Advice") by the Company that the use of the Prospectus may be resumed, and
has received copies of any additional or supplemental filings which are
incorporated by reference in such Prospectus, and, if so directed by the Company
such Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event the Company shall give any such notice, the time
period mentioned in Section 4.2 hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when each Selling Holder shall have received the copies
of the supplemental or amended Prospectus contemplated by Section 4.9 hereof or
the Advice.
5.3 Underwriting Agreement. Each Selling Holder participating
in an underwritten offering pursuant to Section 2.1 or 2.2 will enter into a
customary underwriting agreement on terms reasonably satisfactory to the
managing underwriter.
6. Registration Expenses. The Company shall bear all expenses other
than Selling Holder Expenses (defined below) incurred in connection with any
Registration Statement, including without limitation all registration and filing
fees, fees with respect to any filings required to be made with the National
Association of Securities Dealers, listing fees relative to any stock exchange
or national market system, fees and expenses of compliance with state
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securities or blue sky laws (including reasonable fees and expenses of counsel
for the underwriters in connection therewith), printing expenses, fees and
disbursements of counsel for the Company, and fees and disbursements of all
independent public accountants of the Company. Each Selling Holder shall bear
his or its pro rata share of any Selling Holder Expenses. "Selling Holder
Expenses" shall consist of and be limited to (i) the Selling Holder's legal
costs, including the fees and expenses of any counsel selected by the Selling
Holder to represent him or it, and (ii) the proportionate share of brokerage or
underwriting commissions attributable to the Selling Holder's shares.
7. Indemnification.
7.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder of Registrable Securities, each Person
who controls such Holder (within the meaning of the Securities Act or the
Exchange Act) (a "controlling person"), and each officer, director, employee and
agent of such Holder and each controlling person and each underwriter or selling
agent (the "indemnified parties") from and against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or any amendment or supplement thereto or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as (i)
the Company has demonstrated that the same are caused by or contained in any
information furnished to the Company by such Holder, expressly for use therein,
or (ii) the Company has advised such Holders' Representative in writing of a
Section 4.3(iv) event and the Holder has sold Registrable Securities
notwithstanding receipt of such notice prior to receipt of a supplement or
amended Prospectus pursuant to Section 4.9 herein; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if (i) such Holder failed to send or deliver a copy
of the Prospectus with or prior to the delivery of written confirmation of the
sale of Registrable Securities and (ii) the Prospectus would have corrected such
untrue statement or omission; provided, further, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in the Prospectus, if
such untrue statement or alleged untrue statement, omission or alleged omission
is corrected in an amendment or supplement to the Prospectus and if, having
previously been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, prior to or concurrently
with the sale of a Registrable Security to the Person asserting such loss,
claim, damage, liability or expense who purchased such Registrable Security
which is the subject thereof from such Holder. The indemnity provided herein
shall remain in full force and effect regardless of any investigation made by or
on behalf of an indemnified party and shall survive the transfer of Registrable
Securities by the Selling Holder.
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7.2 Indemnification by Holders. In connection with the
Registration Statements hereunder, each Selling Holder agrees to indemnify, to
the full extent permitted by law, the Company, and each Person who controls the
Company (within the meaning of the Securities Act or the Exchange Act) and each
director, officer, employee and agent of each such Person from and against any
losses, claims, damages, liabilities and expenses caused by any untrue statement
of a material fact or any omission of a material fact required to be stated in
any Registration Statement or Prospectus or preliminary prospectus or necessary
to make the statements therein not misleading, to the extent, but only to the
extent, that the Company has demonstrated that such untrue statement or omission
is contained in any information or affidavit so furnished by such Holder to the
Company specifically for inclusion in such Registration Statement or Prospectus.
In no event, however, shall the liability of any Selling Holder hereunder be
greater in amount than the dollar amount of the proceeds (net of underwriters'
discounts and commissions) received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation. The
Company shall be obligated to give to, and shall be entitled to receive from,
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution customary indemnities.
7.3 Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (a) the
indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume within a reasonable period of
time the defense of such claim and employ counsel reasonably satisfactory to
such person or (c) in the reasonable judgment of any such Person, based upon
written advice of its counsel, a conflict of interest may exist between such
Person and the indemnifying party with respect to such claims or such Person may
have separate or additional defenses (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation. 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 principal and one local counsel for all parties
indemnified by such indemnifying party with respect to such claim.
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7.4 Contribution. If the indemnification provided for in
Sections 7.1 or 7.2 is unavailable to the indemnified parties in respect of any
losses, claims, damages or liabilities 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 losses, claims, damages or liabilities (i) as between the Company and
the Selling Holders on the one hand and the underwriters on the other hand, in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Holders on the one hand and the underwriters on the
other hand from the offering of all of the securities sold in the offering, or
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations and (ii) as between the Company on the
one hand and each Selling Holder on the other hand, in such proportion as is
appropriate to reflect the relative fault of the Company and of each Selling
Holder in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Holders on the one hand and the underwriters on the other hand
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Selling Holders bear to the total
underwriting discounts and commissions received by the underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and the Selling Holders on the one hand and of the
underwriters on the other hand 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 the Company and the Selling Holders or by the underwriters. The
relative fault of the Company on the one hand and of each Selling Holder on the
other hand 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 party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7.4, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Common Stock underwritten by it and distributed to the public
was offered to the public exceeds
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the amount of any damages which such underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission, and no Selling Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the securities of such
Selling Holder were offered to the public exceeds the amount of any damages
which such Selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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. The Selling Holders'
obligations to contribute pursuant to this Section 7.4 are several in proportion
to the proceeds of the offering received by each Selling Holder bears to the
total proceeds of the offering received by all the Selling Holders and not
joint.
8. Selection of Underwriters. In connection with any request for
registration under Section 2.1 hereof, the Company shall be entitled to select
the managing underwriter if it is also registering shares on its own behalf. The
Selling Holders, however, shall be entitled to select the co-managing
underwriter. If the Registration Statement covers only shares being sold by the
Selling Holders, then the Selling Holders shall be entitled to select the
managing underwriter, subject to approval by the Company, which approval shall
not be unreasonably withheld. In connection with any registration under Section
2.2, the Selling Holders shall have no right to select underwriters.
9. Rule 144. The Company covenants that, after it has filed a
registration pursuant to Section 12 of the Exchange Act or a registration
statement under the Securities Act becomes effective, it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder, and it will take such
further action as may be reasonably and customarily requested by any Holder of
Registrable Securities, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such information and
requirements.
10. Transfer of Registration Rights. The registration rights granted
pursuant to this Agreement shall be available to a transferee of any Registrable
Securities if (i) the transferring Holder gives the Company written notice of
such transfer, identifying the name and address of the transferee and the
securities involved; (ii) the transferee agrees in writing to be bound by the
provisions of this Agreement; and (iii) as a result of such transfer, the
transferee holds at least 5% (or, if the "Second Closing" under the Stock
Purchase Agreement shall have been consummated, 10%) of the shares of Common
Stock outstanding as of the date of the transfer.
11. Miscellaneous.
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11.1 Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby waives the defense in any action
for specific performance that a remedy at law would be adequate.
11.2 No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with or limits or impairs the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
11.3 Adjustments Affecting Registrable Securities. The Company
will not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the Holders
of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
11.4 Notices. All notices or other communications hereunder
shall be in writing and shall be given by (i) personal delivery, (ii) courier or
other delivery service which obtains a receipt evidencing delivery, (iii)
registered or certified mail (postage prepaid and return receipt requested), or
(iv) facsimile or similar electronic device, to such address as may be
designated from time to time by the relevant party, and which shall initially
be: (i) in the case of the Company, 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxx, facsimile (000) 000-0000, with a copy to
Xxxxxxxx, Xxxxxxx & Xxxxxxx, A Professional Corporation, 000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000, Attn: Xxxxxx X. Xxxx, Esq., facsimile (000) 000-0000; and (ii)
in the case of Vulcan, 000 000xx Xxxxxx X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx
00000, attention: Xxxxxxx X. Xxxxx, facsimile (000) 000-0000, with a copy to
Irell & Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000,
Attn: Xxxxx X. Xxxxx, Esq., facsimile (000) 000-0000. All notices and other
communications shall be deemed to have been given (i) if delivered by the United
States mail, three business days after mailing (five business days if delivered
to an address outside of the United States), (ii) if delivered by a courier or
other delivery service, one business day after dispatch (two business days if
delivered to an address outside of the United States), and (iii) if personally
delivered or sent by facsimile or similar electronic device, upon receipt by the
recipient or its agent or employee (which, in the case of a notice sent by
facsimile or similar electronic device, shall be the time and date indicated on
the transmission confirmation receipt). No objection may be made by a party to
the manner of delivery of any notice actually received in writing by an
authorized agent of such party.
11.5 Complete Agreement; Modifications. This Agreement
and any documents referred to herein or executed contemporaneously herewith
constitute the parties' entire agreement with respect to the subject matter
hereof and supersede all agreements,
99
representations, warranties, statements, promises and understandings, whether
oral or written, with respect to the subject matter hereof. This Agreement may
be amended, altered or modified only by a writing signed by the Company, the
Majority Holders.
11.6 Successors and Assigns. Except as provided herein to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
parties, their respective successors and permitted assigns, including without
limitation and without the need for an express assignment, subsequent Holders of
Registrable Securities.
11.7 Governing Law. All questions with respect to the
Agreement and the rights and liabilities of the parties shall be governed by the
laws of the State of Delaware, regardless of the choice of laws provisions of
Delaware or any other jurisdiction.
11.8 Attorneys' Fees. Should any litigation be commenced
(including any proceedings in a bankruptcy court) between the parties hereto or
their representatives concerning any provision of this Agreement or the rights
and duties of any Person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the reasonable attorneys' fees and court costs incurred by reason of
such litigation.
11.9 Headings. The Article and Section headings in this
Agreement are inserted only as a matter of convenience, and in no way define,
limit, extend or interpret the scope of this Agreement or of any particular
Article or Section.
11.10 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
11.11 Gender. Throughout this Agreement, as the context may
require, the masculine gender includes the feminine and neuter; and the neuter
gender includes the masculine and feminine.
11.12 Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth hereinabove.
GO2NET, INC.
By:______________________________
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, Chief Executive Officer
VULCAN VENTURES INCORPORATED
By:______________________________
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Vice President
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