Exhibit 7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of November 30, 1999, by and among NBC Internet, Inc., a
Delaware corporation (formerly known as Xenon 2, Inc., and together with is
successors and assigns, "NBCI"), National Broadcasting Company, Inc., a
Delaware corporation (together with its successors and assigns, "NBC"), GE
Investments Subsidiary, Inc., a Delaware corporation ("GE SUB"), CNET, Inc.
(together with its successors and assigns, "CNET"), Flying Disc Investments
Limited Partnership, a Nevada limited partnership ("DISC"), Xx. Xxxxx Xxxxx
("XXXXX") and each other person who becomes a holder hereunder (collectively,
with NBC, GE Sub, CNET, Disc and Kitze, the "HOLDERS").
RECITALS
WHEREAS, Xxxx.xxx, Inc., a Delaware corporation ("XOOM"), NBCi, Xenon
3, Inc., a Delaware corporation ("XENON 3"), Snap! LLC, a Delaware limited
liability company ("SNAP"), and CNET, are parties to an Agreement and Plan of
Contribution and Merger, dated as of May 9, 1999, as amended (the "MERGER
AGREEMENT"), pursuant to which, among other things, the parties thereto have
agreed that (i) Xenon 3 will merge with and into Xoom, with Xoom as the
surviving corporation, and each outstanding share of common stock, par value
$0.0001 per share, of Xoom (the "COMMON STOCK") will be converted into the right
to receive one share of Class A common stock, par value $0.0001 per share, of
NBCi (the "CLASS A COMMON STOCK") and (ii) CNET will contribute its ownership
interest in Snap to NBCi in exchange for 7,147,584 shares of Class A Common
Stock;
WHEREAS, Xoom, NBCi, NBC, Neon Media Corporation, a Delaware
corporation ("NMC"), and GE Sub, are parties to a Second Amended and Restated
Agreement and Plan of Contribution, Investment and Merger, dated as of July 8,
1999, as amended (the "CONTRIBUTION AGREEMENT" and together with the Merger
Agreement, the "MERGER AGREEMENTS"), pursuant to which, among other things, the
parties thereto have agreed that (i) NMC will merge with and into NBCi, with
NBCi as the surviving corporation and each share of NMC common stock will be
converted into one share of Class B Common Stock of NBCi (the "CLASS B COMMON
STOCK") which will result in the issuance of 12,173,111 shares of Class B Common
Stock to NBC Multimedia Inc., a wholly owned subsidiary of NBC, (ii) a
subsidiary of NBC will transfer its ownership interest in Snap and certain other
assets to NBCi in exchange for 11,417,569 shares of Class B Common Stock and a
convertible note from NBCi which will be convertible into 471,031 shares of
Class B Common Stock and (iii) an affiliate of NBC will purchase a convertible
note from NBCi, which will be convertible into 5,338,357 shares of Class B
Common Stock, in exchange for the assignment to NBCi of a note issued by NBC;
and
WHEREAS, the execution and delivery of this Agreement by the parties
hereto is a condition to the closing of the transactions contemplated by the
Merger Agreements.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Merger Agreements, and other valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"INITIAL CNET DEMAND": A Demand Notice delivered by CNET pursuant to
Section 3(a)(iv) or 3(a)(v).
"INITIAL HOLDERS": NBC, GE Sub, CNET, Disc and Kitze.
"PROSPECTUS": The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), 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 such
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES": All shares of Class A Common Stock (i) held
by the Initial Holders from time to time, (ii) held by transferees of the
Initial Holders, but only with respect to securities transferred in accordance
with Section 11(e); (iii) issuable by NBCi or (iv) issued or issuable upon the
conversion of Class B Common Stock, including shares of Class B Common Stock
issuable to NBC or its affiliates upon conversion of the convertible notes held
on the date hereof, into Class A Common Stock, excluding in each case shares of
Class A Common Stock that have been disposed of pursuant to a Registration
Statement relating to the sale thereof that has become effective under the
Securities Act or pursuant to Rule 144 or Rule 145 under the Securities Act.
Registrable Securities shall also include any shares of Class A Common Stock or
other securities (or shares of Class A Common Stock underlying such other
securities) that may be received by the Holders (x) as a result of a stock
dividend on or stock split of Registrable Securities or Class B Common Stock or
(y) on account of Registrable Securities or Class B Common Stock in a
recapitalization of or other transaction involving NBCi.
"REGISTRATION STATEMENT": Any registration statement of NBCi under
the Securities Act that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the related Prospectus, any preliminary
prospectus, all amendments and supplements to such registration statement
(including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"SEC": The Securities and Exchange Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended.
"UNDERWRITTEN OFFERING": A distribution, registered pursuant to the
Securities Act, in which securities of NBCi are sold to the public through one
or more underwriters.
"VOTING AGREEMENT": means the Voting Agreement dated as of May 9,
1999, among Xoom, certain holders of the capital stock of NBCi, NBC and CNET, as
the same may be amended, supplemented or otherwise modified from time to time.
Section 2. SHELF REGISTRATION OF RESALES.
(a) SHELF REGISTRATION STATEMENT. Within 45 days of receipt by NBCi
of a written notice as described in Section 3(a) which is requested to be
effected as a shelf registration pursuant to Rule 415 under the Securities Act
(such Demand Registration, a "SHELF REGISTRATION") (which request shall not be
made at any time prior to the later of the twelve month anniversary of the date
hereof or the date on which NBCi first becomes eligible to file a registration
statement on Form S-3), NBCi shall file with the SEC a registration statement
for an offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act (a "SHELF REGISTRATION STATEMENT") covering all of the
Registrable Securities of the requesting Holder included in the Demand Notice
and any additional Registrable Securities requested to be included by the other
Holders pursuant to the terms of Sections 3(c) and 4(b) (collectively, in such
capacity, the "REGISTERING HOLDERS"). The Shelf Registration Statement shall be
on the appropriate form and shall comply as to form in all material respects
with the requirements of the Securities Act and the sales and regulations
promulgated thereunder, permitting registration of such Registrable Securities
for resale by the Registering Holders in the manner designated by them
(including, without limitation, one or more Underwritten Offerings). NBCi shall
use all commercially reasonable efforts to cause the Shelf Registration
Statement to be declared effective by the SEC as promptly as practicable. NBCi
will notify the Registering Holders in writing when such Shelf Registration
Statement becomes effective.
(b) MAINTENANCE OF EFFECTIVENESS. NBCi agrees to use commercially
reasonable efforts to keep the Shelf Registration Statement (including the
preparation and filing of any amendments and supplements necessary for that
purpose) continuously effective until the earlier of (a) the date on which the
Registering Holders (or distributees or transferees of such Registering Holders)
no longer hold any Registrable Securities or (b) the date on which all the
Registrable Securities of the Registering Holders are eligible for sale pursuant
to Rule 144(k) (or any successor provision) or in one day without registration
pursuant to Rule 144(e) (or any successor provision) under the Securities Act
(such period, the "EFFECTIVE PERIOD"). Each Registering Holder seeking to offer
and sell Registrable Securities upon exercise of the rights hereunder agrees to
provide information to NBCi in a timely manner regarding the proposed
distribution by such Registering Holder of the Registrable Securities and such
other information reasonably requested by NBCi in connection with the
preparation of the Shelf Registration Statement. If the Shelf Registration
Statement ceases to be effective for any reason or at any time during the
Effective Period (other than because of the sale of all the securities
registered thereunder), NBCi shall use commercially reasonable efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof. Upon
written request from a Registering Holder during the Effective Period, NBCi
shall, subject to the other provisions of this Agreement, promptly supplement
the Shelf Registration Statement to reflect resales of Class A Common Stock by
any distributees or other transferees of any Holder who received their Class A
Common Stock in accordance with this Agreement and who have been identified in
writing to NBCi.
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(c) OFFERINGS AND SALES. At any time during the Effective Period, any
Registering Holder may exercise its Shelf Registration rights hereunder with
respect to the Registrable Securities. If any Registering Holder desires to
offer and sell Registrable Securities under the Shelf Registration Statement
pursuant to an underwritten public offering, such Registering Holder shall
deliver a written notice (the "REGISTRATION NOTICE") to NBCi at least 20 days
prior to the date on which such Registering Holder desires to consummate the
sale of Registrable Securities. Any Registration Notice shall be subject to
revocation by the Registering Holder initiating the request by delivery of a
subsequent written notice to NBCi no later than the fifth business day prior to
the contemplated offering commencement date.
Upon receipt of a Registration Notice, NBCi shall, within 30 days of
receipt thereof, give written notice to the other Registering Holders of NBCi's
receipt thereof. Within 15 days of receipt of such a notice from NBCi, any
other Registering Holder desiring to offer and sell any Registrable Securities
in the subject offering shall give written notice to NBCi, the Registering
Holder who delivered the Registration Notice to NBCi, and the lead managing
underwriter, if any, which notice shall specify the number of shares of
Registrable Securities such Registering Holder desires to offer for sale. NBCi
shall not be permitted to participate in such an offering without the written
consent of the Registering Holder initiating the offering (which consent shall
not be unreasonably withheld). In the event the Registrable Securities
requested to be included by the Registering Holders in the aggregate exceeds the
number of Registrable Securities to be included in the Underwritten Offering,
priority will be determined in accordance with Section 3(c).
(d) POSTPONEMENT OF SHELF REGISTRATION. NBCi will be entitled to
postpone the obligation to file any Shelf Registration Statement for a
reasonable period not in excess of 90 calendar days if NBCi's Board of Directors
determines, in the good faith exercise of its business judgment, that such
registration and offering would materially interfere with BONA FIDE financing
plans or strategic acquisition, disposition or alliance of NBCi that would
require disclosure of information, the premature disclosure of which could
materially and adversely affect NBCi. Notwithstanding the foregoing, in no
event shall the aggregate number of days during any period of 12 consecutive
months during which the Registering Holders are subject to (i) postponement
pursuant to this Section 2(d), (ii) postponement pursuant to Section 3(d) and
(iii) Black-Out pursuant to Section 7 exceed 90 days. If NBCi postpones the
filing of a Shelf Registration Statement, it will promptly notify the Holders in
writing (i) when the events or circumstances permitting such postponement have
ended and (ii) that the decision to postpone was made by the Board of Directors
of NBCi in accordance with this Section 2(d).
Section 3. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION BY HOLDERS. At any time and from time
to time during which there is no Shelf Registration Statement that is effective
under the Securities Act so as to permit the offer and sale of all Registrable
Securities thereunder, subject to the conditions set forth in this Agreement one
or more Holders will have the right, by written notice delivered to NBCi (a
"DEMAND NOTICE"), to require NBCi to register Registrable Securities under and
in
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accordance with the provisions of the Securities Act (a "DEMAND
REGISTRATION"), PROVIDED that effective on the date of this Agreement and
subject to the conditions set forth herein (i) NBC, on behalf of NBC or GE
Sub, may not make more than four (4) Demand Registrations in total, one of
which can be made on Form S-1 and one of which can be for a Shelf
Registration, and CNET and Kitze, on behalf of Kitze or Disc (for Registrable
Securities held by Disc on the date hereof), may not make more than three (3)
Demand Registrations each, of which, in the case of each of CNET and Kitze,
one of which can be for a Shelf Registration and of which two (2) can be made
on Form S-1 in the case of CNET and its transferees, and one (1) can be made
on Form S-1 in the case of Kitze, Disc and their respective transferees, (ii)
no Demand Notice may be given prior to six (6) months after the effective
date of the immediately preceding Demand Registration, (iii) no such Demand
Registration may be required unless the Holders requesting such Demand
Registration provide to NBCi a certificate (the "AUTHORIZING CERTIFICATE"),
seeking to include Registrable Securities in such Demand Registration with a
market value of at least $25,000,000 (or $50,000,000 in the case of a Demand
Notice for a Shelf Registration) (calculated based on the average closing
sale price of such securities on the principal securities exchange or
quotation system where such securities are listed on the five business days
immediately preceding the date of the Demand Notice) as of the date the
Demand Notice is given, (iv) if a Demand Notice is delivered to NBCi during
the 60 day period commencing on the closing date of the Contribution
Agreement by CNET, such Demand Notice will be given priority over any Demand
Registrations or Shelf Registrations of Registrable Securities until such
registration for CNET is effected, (v) if a Demand Notice is delivered to
NBCi during the 60 day period commencing on the closing date of the
Contribution Agreement from a Holder other than CNET, NBCi will provide CNET
with the opportunity to deliver a Demand Notice, which Demand Notice by CNET
will be given priority over the previously delivered Demand Notice and any
other Demand Notice until such registration for CNET is effected, (vi) if a
Demand Notice is delivered to NBCi during the 12 month period commencing on
the closing date of the Contribution Agreement, such Demand Registration
shall be an Underwritten Offering in accordance with Section 10, and (vii) in
any Underwritten Offering, shares may be excluded by the underwriters based
on market conditions and marketing factors. The Authorizing Certificate
shall set forth (A) the name of each Holder signing such Authorizing
Certificate, (B) the number of Registrable Securities held by each such
Holder, and, if different, the number of Registrable Securities such Holder
has elected to have registered, and (C) the intended methods of disposition
of the Registrable Securities. Notwithstanding the foregoing, a good faith
decision by a Holder to withdraw Registrable Securities from registration
will not affect NBCi's obligations under this Section 3(a) unless the amount
remaining to be registered has a market value of less than $25,000,000 (or
$50,000,000 in the case of a Shelf Registration) (calculated as aforesaid).
(b) FILING AND EFFECTIVENESS. NBCi will file a Registration
Statement relating to any Demand Registration as soon as practicable but in no
event later than 45 days following the date on which the Demand Notice is given,
or 90 days in the case of the first Demand Registration, and will use its best
efforts to cause the same to be declared effective by the SEC as soon as
practicable thereafter. If any Demand Registration is requested to be effected
as a Shelf Registration by the Holders demanding such Demand Registration, NBCi
will keep the Registration Statement filed in respect thereof effective for the
Effective Period.
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Within ten (10) business days after receipt of such Demand Notice,
NBCi will serve written notice thereof (the "NOTICE") to all other Holders and
will, subject to the provisions of Section 3(c), include in such registration
all Registrable Securities with respect to which NBCi receives written requests
for inclusion therein ("REQUEST FOR INCLUSION") within ten (10) business days
after receipt of the Notice by the applicable Holder. In the event that any
other Holder has the right to request a Demand Registration pursuant to the
provisions of Section 3(a), and PROVIDED that more than 60 days have elapsed
since the closing date of the Contribution Agreement, if such Request for
Inclusion includes a Demand Notice on behalf of such Holder, such Holder will be
treated as an initiating Holder for purposes of the Demand Registration. Any
Holder will be permitted to withdraw in good faith all or part of the
Registrable Securities from a Demand Registration at any time prior to the
effective date of such Demand Registration, in which event NBCi will promptly
amend or, if applicable, withdraw the related Registration Statement. In the
event the withdrawing Holder is the sole initiating Holder of such Demand
Registration pursuant to Section 3(a), such demand will count as a Demand
Registration of such Holder unless the withdrawing Holder pays all registration
expenses in connection with such withdrawn registration as described in Section
8; PROVIDED that in the event there has been a Material Adverse Change in the
business or financial condition of NBCi between the date of the Demand Notice
relating to such Demand Registration and the date of the withdrawal, NBCi shall
pay all registration expenses and such registration shall not be counted as a
Demand Registration to which such Holder is entitled pursuant to Section 3(a)
hereof. In the event all of the initiating Holders withdraw, such demand will
count as a Demand Registration of each such Holder unless, in the case of each
such Holder, such Holder pays its pro rata portion of all registration expenses
in connection with such withdrawn registration as described in Section 8;
PROVIDED that in the event there has been a Material Adverse Change in the
business or financial condition of NBCi between the date of the Demand Notice
relating to such Demand Registration and the date of the withdrawal, NBCi shall
pay all registration expenses and such registration shall not be counted as a
Demand Registration to which such Holders are entitled pursuant to Section 3(a)
hereof. For the purpose of this Section 3(b), "Material Adverse Change" shall
mean any change that, individually or in the aggregate with all other changes,
is materially adverse to the business, financial condition or results of
operation of NBCi and its subsidiaries taken as a whole other than any change or
circumstance arising from a decrease of less than 25% of the closing price of
NBCi on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or the National Market System of Nasdaq from the date of the
Demand Notice or the Request for Inclusion, as the case may be.
(c) PRIORITY ON DEMAND REGISTRATION. Subject to the provisions set
forth in Sections 3(a)(iv) and (v) and Section 3(b) regarding CNET's priority,
if Registrable Securities are to be registered pursuant to a Demand
Registration, NBCi shall provide written notice to the other Holders and will
permit all such Holders who request to be included in the Demand Registration to
include any or all Registrable Securities held by such Holders in such Demand
Registration. In connection with any Demand Registration, NBCi may include
securities for its own account and/or for the account of other holders of NBCi's
securities in such registration to the extent agreed to by the underwriters. If
the managing underwriter or underwriters of an Underwritten Offering to which
such Demand Registration relates advises the Holders that the total amount of
Registrable Securities that such Holders intend to include in such Demand
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Registration is in the aggregate such as to materially and adversely affect the
success of such offering, then the number of Registrable Securities to be
included in such Demand Registration will, if necessary, be reduced and there
will be included in such Underwritten Offering the number of Registrable
Securities that, in the opinion of such managing underwriter or underwriters,
can be sold without materially and adversely affecting the success of such
Underwritten Offering, the Registrable Securities of the Holder or Holders
initiating the Demand Registration and NBCi shall receive priority in such
Underwritten Offering to the full extent of the Registrable Securities such
Holder or Holders (including NBCi) desire to sell, PROVIDED that, in the event
the Registrable Securities requested to be included by the initiating Holders
and NBCi in the aggregate exceeds the number of Registrable Securities to be
included in the Underwritten Offering, then:
(i) Registrable Securities requested to be included by CNET in
the Initial CNET Demand will comprise the lesser of (A) at least 50%
of the Registrable Securities included in such offering or (B) all of
the Registrable Securities requested to be included by CNET, with the
remainder of the Registrable Securities in such offering being
allocated to NBCi and Kitze as a direct holder or as the beneficial
owner of Registrable Securities held by Disc as determined in good
faith by the mutual agreement of NBCi and Kitze, it being understood
that the current intention of such parties is that Kitze's allocation
will be in the range of 10% - 15% of the Underwritten Offering;
(ii) if any Registration Statement is proposed to be filed by
NBCi whether or not for sale for NBCi's own account during the six
month period after the Effective Date of the Initial CNET Demand,
Registrable Securities requested to be included by CNET will comprise
the lesser of (A) at least 25% of the Registrable Securities included
in such offering or (B) all of the Registrable Securities requested to
be included by CNET; PROVIDED that in no event will CNET be entitled
to include more than 1,000,000 Registrable Securities in such
offering; PROVIDED FURTHER that, (A) if the number of shares included
by CNET is 500,000 or less, then such inclusion shall be in addition
to the rights contained in this Section 3 and shall not be deemed the
exercise by CNET of one of its Demand Registrations and (B) if the
number of shares included by CNET is more than 500,000, then such
inclusion shall be deemed the exercise by CNET of one of its Demand
Registrations pursuant to this Section 3; and
(iii) except as provided in 3(c)(ii) above, following the Initial
CNET Demand, or, if no such demand is made, following the 60 day
period commencing on the closing date of the Contribution Agreement,
(A) Registrable Securities requested to be included by NBCi will
comprise the lesser of (1) at least 50% of the Registrable Securities
included in such offering or (2) all of the Registrable Securities
requested to be included by NBCi and (B) of the remaining securities
to be included in such Underwriting Offering, Registrable Securities
of each initiating Holder will be included PRO RATA on the basis of
the amount of Registrable Securities requested to be included therein
by each such Holder. Any
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remaining allocation available for sale shall be allocated PRO RATA
among the other Holders on the basis of the amount of Registrable
Securities requested to be included therein by each such Holder.
(d) POSTPONEMENT OF DEMAND REGISTRATION. NBCi will be entitled to
postpone the obligation to file any Demand Registration for a reasonable period
of time not exceeding 90 calendar days (other than the Demand Registration for
the Initial CNET Demand [which may be postponed for a reasonable period of time
not exceeding 60 calendar days]) if NBCi's Board of Directors determines, in the
good faith exercise of its business judgment, that such registration and
offering would materially interfere with BONA FIDE financing plans or strategic
acquisition, disposition or alliance of NBCi that would require disclosure of
information, the premature disclosure of which could materially and adversely
affect NBCi. Notwithstanding the foregoing, in no event shall the aggregate
number of days during any period of 12 consecutive months during which the
Registering Holders are subject to (i) postponement pursuant to this Section
3(d), (ii) postponement pursuant to Section 2(d) and (iii) Black-Out pursuant to
Section 7 exceed 90 days [; PROVIDED, HOWEVER, that any postponement with
respect to an Initial CNET Demand shall be disregarded in determining the
aggregate number of days during any 12-month period]. If NBCi postpones the
filing of a Registration Statement, it will promptly notify the Holders in
writing (i) when the events or circumstances permitting such postponement have
ended and (ii) that the decision to postpone was made by the Board of Directors
of NBCi in accordance with this Section 3(d).
Section 4. PIGGYBACK REGISTRATION.
(a) RIGHT TO PIGGYBACK. If at any time NBCi proposes to file a
Registration Statement whether or not for sale for NBCi's own account, on a form
and in a manner that would also permit registration of Registrable Securities,
including, without limitation, pursuant to Sections 2 and 3 hereof, NBCi shall
give to Holders holding Registrable Securities, written notice of such proposed
filing at least thirty (30) days before the anticipated filing. The notice
referred to in the preceding sentence shall offer Holders the opportunity to
register such amount of Registrable Securities as each Holder may request (a
"PIGGYBACK REGISTRATION"). Subject to Section 4(b), NBCi will include in each
such Piggyback Registration all Registrable Securities with respect to which
NBCi has received written requests for inclusion therein. The Holders will be
permitted to withdraw all or part of the Registrable Securities from a Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration.
NBCi will not be obligated to effect any registration of
Registrable Securities under this Section 4 as a result of the registration
of any of its securities in connection with mergers, acquisitions, exchange
offers, dividend reinvestment, transfers of assets, reclassifications and
share purchase plans offered solely to current holders of Class A Common
Stock, rights offerings or option or other employee benefit plans.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. NBCi will cause the
managing underwriter or underwriters of a proposed Underwritten Offering on
behalf of NBCi to permit Holders to include therein all such Registrable
Securities requested to be so included on the same
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terms and conditions as any securities of NBCi included therein.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such Underwritten Offering delivers an opinion to the Holders to the effect
that (i) the total amount of securities that such Holders and NBCi propose to
include in such Underwritten Offering or (ii) the effect of the potential
withdrawal of any Registrable Securities by any Holder (except any Holder who
has theretofore waived such Holder's right to withdraw all or part of its
Registrable Securities pursuant to Section 4(a)) prior to the effective date
of the Registration Statement relating to such Underwritten Offering, is such
as to materially and adversely affect the success of such offering, then the
amount of securities to be included therein for the account of Holders will,
if necessary, be reduced and there will be included in such Underwritten
Offering the number of Registrable Securities that, in the opinion of such
managing underwriter or underwriters, can be sold without materially and
adversely affecting the success of such Underwritten Offering. The securities
of any Holder or Holders of securities initiating the registration and NBCi
shall receive priority in such Underwritten Offering to the full extent of
the Registrable Securities such Holder or Holders and NBCi desire to sell and
the remaining allocation available for sale, if any, shall be allocated PRO
RATA among the other Holders on the basis of the amount of Registrable
Securities requested to be included therein by each such Holder; PROVIDED,
HOWEVER, if any Registration Statement is proposed to be filed by NBCi
whether or not for sale for NBCi's own account during the six month period
after the Effective Date of the Initial CNET Demand, Registrable Securities
requested to be included by CNET will comprise the lesser of (A) at least 25%
of the Registrable Securities included in such offering or (B) all of the
Registrable Securities requested to be included by CNET; PROVIDED that in no
event will CNET be entitled to include more than 1,000,000 Registrable
Securities in such offering; PROVIDED FURTHER that, (A) if the number of
shares included by CNET is 500,000 or less, then such inclusion shall be in
addition to the rights contained in this Section 3 and shall not be deemed
the exercise by CNET of one of its Demand Registrations and (B) if the number
of shares included by CNET is more than 500,000, then such inclusion shall be
deemed the exercise by CNET of one of its Demand Registrations pursuant to
this Section 3. The managing underwriter or underwriters, applying the same
standard, may also exclude entirely from such offering all Registrable
Securities proposed to be included in such offering to the extent the
Registrable Securities are not of the same class as securities of NBCi
included in such offering.
Section 5. REGISTRATION PROCEDURES. In connection with NBCi's
registration obligations pursuant to Sections 2, 3 and 4, NBCi will effect such
registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
NBCi will as soon as practicable, but in no event later than 45 days after
delivery of the Demand Notice, or 90 days in the case of the initial Demand
Registration, and in each case to the extent applicable:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof, and use
its best efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; PROVIDED, HOWEVER, that before filing a
Registration Statement or Prospectus or any amendments or supplements thereto
(including documents that would be incorporated or deemed to be incorporated
therein by reference) NBCi
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will furnish to the Holders copies of all such documents proposed to be filed
(but excluding schedules, documents to be incorporated or deemed incorporated
therein by reference and exhibits, unless requested in writing by such
Holders or their counsel), which documents will be subject to the review of
such Holders and any underwriters, and NBCi will not file any such
Registration Statement or amendment thereto or any Prospectus or any
supplement thereto (including such documents that, upon filing, will be
incorporated or deemed to be incorporated by reference therein) to which any
Holder of the Registrable Securities covered by such Registration Statement
or the managing underwriter, if any, shall reasonably object on a timely
basis;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective as provided herein; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented;
(c) notify the selling Holders and the managing underwriters, if
any, promptly, and (if requested by any such person) confirm such notice 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 any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus
or for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time the representations and
warranties of NBCi contained in any agreement contemplated by Section 5(n)
(including any underwriting agreement) cease to be true and correct in any
material respect, (v) of the receipt by NBCi of any notification with respect
to the suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (vi) of the occurrence
of any event that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the
making of any changes in a Registration Statement, Prospectus or any such
document so that, in the case of the Registration Statement, it 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 statements
therein not misleading and, in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(d) use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification
10
(or exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction, at the earliest possible moment;
(e) if requested by the managing underwriters, if any, or any Holder
of the Registrable Securities being registered, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, and such Holders agree should be included therein
as may be required by applicable law and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable
after NBCi have received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; PROVIDED, HOWEVER, that NBCi
will not be required to take any actions under this Section 5(e) that are not,
in the opinion of counsel for NBCi, in compliance with applicable law;
(f) furnish to each selling Holder and each managing underwriter, if
any, without charge, at least one conformed copy of the Registration Statement
and any post-effective amendment thereto, including financial statements (but
excluding schedules, all documents incorporated or deemed incorporated therein
by reference and all exhibits, unless requested in writing by such Holder, such
Holder's counsel or such underwriter);
(g) deliver to each selling Holder and the underwriters, if any,
without charge as many copies of the Prospectus or Prospectuses relating to such
Registrable Securities (including each preliminary prospectus) and any amendment
or supplement thereto as such persons may reasonably request; and NBCi hereby
consents to the use of such Prospectus or each amendment or supplement thereto
by each of the selling Holders and the underwriters, if any, in connection with
the offering and sale of the Registrable Securities covered by such Prospectus
or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, 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 (or exemption from such 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 seller or underwriter
reasonably requests in writing; use all reasonable efforts to keep such
registration or qualification (or exemption therefrom) effective during the
period the applicable Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in each such jurisdiction of the Registrable Securities covered by
the applicable Registration Statement; PROVIDED, HOWEVER, that NBCi will not be
required to (i) qualify to do business in any jurisdiction where it is not then
so qualified or (ii) take any action that would subject it to service of process
in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders and the managing underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, shall request at least two business days prior to
any sale of Registrable Securities to the underwriters;
11
(j) use all reasonable efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States except as may be required solely as a consequence of the nature of any
selling Holder's business, in which case NBCi will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of such
approvals as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(k) upon the occurrence of any event contemplated by Section
5(c)(vi), prepare a supplement or post-effective amendment to each Registration
Statement or a supplement to the 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 a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(l) use its best efforts to cause all Registrable Securities covered
by such Registration Statement to be either (i) listed on each securities
exchange, if any, on which similar securities issued by NBCi are then listed or,
if no similar securities issued by NBCi are then so listed, on the New York
Stock Exchange or another national securities exchange if the securities qualify
to be so listed or (ii) authorized to be quoted on Nasdaq or the National Market
System of Nasdaq, if the securities qualify to be so quoted;
(m) as needed, (i) engage an appropriate transfer agent and provide
the transfer agent with printed certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Securities;
(n) enter into such customary agreements (including, in the event of
an Underwritten Offering, an underwriting agreement in form, scope and substance
as is customary in underwritten offerings) and take all such other commercially
reasonable and customary actions in connection therewith (including, without
limitation, entering into and causing its officers, directors and affiliates to
enter into customary lock-up agreements and taking other actions reasonably
requested by the initiating Holder or, if none, the Holders holding a majority
of the Registrable Securities being sold or, in the event of an Underwritten
Offering, those reasonably requested by the managing underwriters) in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, (i) make such
representations and warranties to the selling Holders holding such Registrable
Securities and the underwriters, if any, with respect to the businesses of NBCi
and its subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference therein, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to NBCi and updates thereof, which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the initiating Holder or,
if none, the Holders holding a majority of the Registrable Securities
12
being sold, addressed to such selling Holder and each of the underwriters, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested
by such Holders and underwriters; (iii) use reasonable efforts to obtain
"comfort" letters and updates thereof from the independent certified public
accountants of NBCi (and, if necessary, any other certified public
accountants of any subsidiary of NBCi or of any business acquired by NBCi for
which financial statements and financial data is, or is required to be,
included in the Registration Statement), addressed to each selling Holder and
each of the underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the initiating Holder or, if
none, the Holders holding a majority of the Registrable Securities being
sold, and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of NBCi and its subsidiaries
made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement or similar
agreement entered into by NBCi. The foregoing actions will be taken in
connection with each closing under such underwriting or similar agreement as
and to the extent required thereunder;
(o) make available for reasonable inspection during normal business
hours by a representative of the Holders holding Registrable Securities being
sold, any underwriter participating in any disposition of Registrable
Securities, and any attorney or accountant retained by such selling Holders or
underwriter, all financial and other records, pertinent corporate documents and
properties of NBCi and its subsidiaries, and cause the officers, directors and
employees of NBCi and its subsidiaries to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant in
connection with such Registration Statement; PROVIDED, HOWEVER, that any
records, information or documents that are designated by NBCi in writing as
confidential at the time of delivery of such records, information or documents
will be kept confidential by such persons unless (i) such records, information
or documents are in the public domain or otherwise publicly available, (ii)
disclosure of such records, information or documents is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities, or (iii) disclosure of such records, information or documents, upon
advice of counsel to such person, is otherwise required by law (including,
without limitation, pursuant to the requirements of the Securities Act);
PROVIDED FURTHER however that in the case of (ii) or (iii) NBCi shall only be
required to disclose that portion which counsel advises NBCi is legally required
and the Holders shall use their commercially reasonable efforts (at NBCi's
expense) to preserve the confidentiality of such documents including, without
limitation, by cooperating with NBCi to obtain an appropriate protective order
or other reliable assurance that confidentiality will be accorded and maintained
to the maximum extent possible;
(p) comply with all applicable 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 and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
calendar days after the end of any 12-month period (or 90 calendar days after
the end of any 12-month period if such period is a fiscal year) (i) commencing
at the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts Underwritten Offering, or (ii)
if not sold to
13
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of NBCi, after the effective date of a Registration Statement,
which statements shall cover said 12-month period;
(q) take any and all actions necessary to become eligible, and use
all reasonable efforts to remain eligible to file registration statements on
Form S-3 and do any and all other acts or things necessary or advisable to
comply with applicable rules and regulations regarding Form S-3, including, but
not limited to, making all filings required by the SEC and complying with any
and all time limits in connection therewith;
(r) use all reasonable efforts to file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time NBCi is not required to file such reports, it will, upon the
request of any of the Holders of the Registrable Securities, make publicly
available other information so long as necessary to permit sales of Registrable
Securities pursuant to Rule 144 and 144A; will take such further action as any
Holder of the Registrable Securities may reasonably request, 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 Rules 144 and 144A; and upon the request of any Holder
shall deliver to the such Holder a written statement as to whether it has
complied with this paragraph (r); and
(s) in connection with any Underwritten Offering, cause appropriate
members of management, including, without limitation, NBCi's Chief Executive
Officer, to cooperate and participate on a reasonable basis in the underwriters'
"road show" conferences related to such offering.
Section 6. INFORMATION. NBCi may require each selling Holder of
Registrable Securities as to which any registration is being effected pursuant
to Section 2, 3 or 4 to furnish to NBCi such information regarding the
distribution of such Registrable Securities as NBCi may, from time to time,
reasonably request in writing and NBCi may exclude from such registration the
Registrable Securities of any selling Holder who unreasonably fails to furnish
such information within a reasonable time after receiving such request. Each
such selling Holder promptly will notify NBCi of the occurrence of any event
that makes any of such information untrue in any material respect or that
requires making a change in such information so that it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated or necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading.
Section 7. SUSPENSION. Each Holder will be deemed to have agreed by
virtue of its acquisition of Registrable Securities that, in connection with any
registrations of Registrable Securities effected pursuant to Section 2, 3 or 4,
upon receipt of any notice from NBCi of the occurrence of any event of the kind
described in Section 5(c)(ii), 5(c)(iii), 5(c)(v) or 5(c)(vi) ("SUSPENSION
NOTICE"), NBCi's obligation to cause any Registration Statement to become
effective or to amend or supplement such Registration Statement shall be
suspended and such Holder will forthwith discontinue disposition of such
Registrable Securities covered by such
14
Registration Statement or Prospectus (a "BLACK-OUT") until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated
by Section 5(k), or until it is advised in writing (the "ADVICE") by NBCi
that the use of the applicable Prospectus may be resumed, and such Holder has
received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
Except as expressly provided herein, there shall be no limitation with regard
to the number of Suspension Notices that NBCi is entitled to give hereunder;
PROVIDED, HOWEVER, that in no event shall the aggregate number of days during
any period of 12 consecutive months during which the Holders are subject to
(i) postponement pursuant to Section 2(d), (ii) postponement pursuant to
Section 3(d) and (iii) Black-Out pursuant to this Section 7 exceed 90 days;
PROVIDED, FURTHER, that any postponement with respect to an Initial CNET
Demand shall be disregarded in determining the aggregate number of days
during any 12-month period]. In the event NBCi shall give a Suspension
Notice, the time period prescribed in Section 2 or Section 3 will be extended
by the number of days during the time period from and including the date of
the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) or (y) the Advice.
Section 8. REGISTRATION EXPENSES. Except as described in Section 3(b),
all fees and expenses incident to the performance of or compliance with this
Agreement by NBCi will be borne by NBCi whether or not any of the Registration
Statements become effective. Such fees and expenses will include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses for compliance with securities or "blue sky" laws), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing a reasonable number of prospectuses if
the printing of such prospectuses is requested by any Holder of Registrable
Securities included in any Registration Statement), (iii) messenger, telephone
and delivery expenses incurred by NBCi, (iv) fees and disbursements of counsel
for NBCi incurred by NBCi, (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(n)(iii) (including the
expenses of any special audit and "comfort" letter required by or incident to
such performance) incurred by NBCi, (vi) Securities Act liability insurance, if
any, if customarily incurred and (vii) reasonable fees and expenses of one
counsel retained by the Holders in connection with the registration and sale of
their Registrable Securities (which counsel will be selected by the Holders of a
majority of the Registrable Securities being sold). In addition, NBCi will pay
internal expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange or quotation
system on which similar securities issued by NBCi are then listed and the fees
and expenses of any person, including special experts, retained by NBCi. In no
event, however, will NBCi be responsible for any underwriting discount or
selling commission with respect to any sale of Registrable Securities pursuant
to this Agreement.
Section 9. INDEMNIFICATION.
15
(a) INDEMNIFICATION BY NBCi. NBCi will, without limitation as to
time, indemnify and hold harmless, to the fullest extent permitted by law, each
Holder holding Registrable Securities registered pursuant to this Agreement, the
officers, directors and agents and employees of each of them, each person who
controls such a Holder (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the officers, directors, agents and
employees of any such controlling person, from and against all losses, claims,
damages, liabilities, costs (including without limitation the costs of
investigation and attorneys' fees) and expenses (collectively, "LOSSES"), as
incurred, arising out of or based upon any untrue or alleged untrue statement of
a material fact contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon 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 the same are based upon
information furnished in writing to NBCi by such Holder expressly for use
therein.
(b) INDEMNIFICATION BY HOLDERS. In connection with any Registration
Statement in which a Holder is participating, such Holder will furnish to NBCi
in writing such information as NBCi reasonably requests for use in connection
with any Registration Statement, Prospectus or preliminary prospectus and will
indemnify, to the fullest extent permitted by law, NBCi, its directors and
officers, agents and employees, each person who controls NBCi (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling persons,
from and against all Losses, as incurred, arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information so furnished in writing by such Holder
to NBCi expressly for use in such Registration Statement, Prospectus or
preliminary prospectus and was used by NBCi in the preparation of such
Registration Statement, Prospectus or preliminary prospectus. In no event will
the liability of any selling Holder hereunder be greater in amount than the
dollar amount of the proceeds (net of payment of all expenses) received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any person shall
become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; PROVIDED, HOWEVER,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. The
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER,
16
that an indemnified party (together with all other indemnified parties which
may be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interest between such indemnified party and any
other party represented by such counsel in such proceeding. All fees and
expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid
to the indemnified party, as incurred, within five calendar days of written
notice thereof to the indemnifying party (regardless of whether it is
ultimately determined that an indemnified party is not entitled to
indemnification hereunder). The indemnifying party will not consent to entry
of any judgment or enter into any settlement or otherwise seek to terminate
any action or proceeding in which any indemnified party is or could be a
party and as to which indemnification or contribution could be sought by such
indemnified party under this Section 9, unless such judgment, settlement or
other termination includes as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release, in form and
substance satisfactory to the indemnified party, from all liability in
respect of such claim or litigation for which such indemnified party would be
entitled to indemnification hereunder.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 9 is unavailable to an indemnified party under Section 9(a) or 9(b) in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9(d), an
indemnifying party that is a selling Holder will not be required to
contribute any amount in excess of the amount by which the net proceeds which
the Registrable Securities sold by such indemnifying party and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of
17
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
NBCi hereunder will be in addition to any liability NBCi may otherwise have
hereunder or otherwise. The provisions of this Section 9 will survive so long
as Registrable Securities remain outstanding, notwithstanding any permitted
transfer of the Registrable Securities by any Holder thereof or any termination
of this Agreement.
Section 10. UNDERWRITTEN REGISTRATIONS.
(a) INITIAL CNET DEMAND. For the Demand Registration effecting
the Initial CNET Demand, CNET shall have the right to appoint the investment
banker or manager to act as lead underwriter for the Underwritten Offering,
PROVIDED that (i) such underwriter is a first-class, nationally recognized
underwriter who is prepared to underwrite the offering and (ii) NBCi has
given its prior written consent to the appointment, which consent shall not
be unreasonably withheld; PROVIDED that an underwriter's lack of commitment
to provide customary market-making and research support services to NBCi
following the offering would constitute a reasonable ground for NBCi to
withhold its consent. For the Demand Registration effecting the Initial CNET
Demand, NBCi shall have the right to appoint the investment banker or manager
to act as co-lead underwriter for the Underwritten Offering, PROVIDED that
such underwriter is a first-class, nationally recognized underwriter who is
prepared to underwrite the offering. The co-lead underwriters for the Demand
Registration effecting the Initial CNET Demand shall be treated equally in
terms of percentage of the gross underwriting spread. Further, CNET and NBCi
may each appoint one investment banker to act as co-manager for the
Underwritten Offering PROVIDED that (i) such manager is a first-class,
nationally recognized manager who is prepared to manage the offering and (ii)
NBCi has given its prior written consent to the appointment of the co-manager
by CNET, which consent shall not be unreasonably withheld; PROVIDED that a
co-manager's lack of commitment to provide customary market-making and
research support services to NBCi following the offering would constitute a
reasonable ground for NBCi to withhold its consent.
(b) OTHER DEMAND REGISTRATIONS. If any of the Registrable Securities
included in any Demand Registration other than the Initial CNET Demand are to be
sold in an Underwritten Offering, the Holders holding a majority of the
Registrable Securities included in the Demand Notice may select an investment
banker or investment bankers and manager or managers to manage the Underwritten
Offering. If any Piggyback Registration is an Underwritten Offering, NBCi will
have the exclusive right to select the investment banker or investment bankers
and managers to administer the offering. Each party hereto agrees that, in
connection with any Underwritten Offering hereunder, it shall undertake to offer
customary indemnification to the participating underwriters. No Holder of
Registrable Securities shall be entitled to participate in an Underwritten
Offering unless such Holder enters into, and performs its obligations under, one
or more underwriting agreements and any related agreements and documents in the
form that such Holder shall agree to with the lead managing underwriter of the
transaction. If any Holder disapproves of the terms of any underwriting, it may
elect, prior to the execution of any
18
underwriting agreement, to withdraw therefrom by written notice to NBCi and
the lead managing underwriter.
Section 11. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by any party of its
obligations under this Agreement, each party, 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. Each party
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any provision of this Agreement and
hereby further agrees that, in the event of any action for specific performance
in respect of such breach, it will waive the defense that a remedy at law would
be adequate.
(b) AMENDMENTS AND WAIVERS. The provisions of Section 2 of this
Agreement may only be amended, modified or supplemented with the prior written
consent of each of NBCi, NBC, CNET and Kitze, and each of their respective
transferees permitted under this Agreement, so long as such Holder holds
Registrable Securities with a market value of at least $50,000,000. The
provisions of Section 3 of this Agreement may only be amended, modified or
supplemented with the prior written consent of each of NBCi, NBC, CNET and
Kitze, and each of their respective transferees permitted under this Agreement,
so long as such Holder holds Registrable Securities with a market value of at
least $25,000,000. The provisions of Sections 1 and 4 through 11 of this
Agreement may only be amended, modified or supplemented with the prior written
consent of each of NBCi, NBC, CNET and Kitze, and each of their respective
transferees, so long as such Holder holds Registrable Securities with a market
value of at least $5,000,000. Upon the effectuation of each such amendment or
waiver, NBCi shall as soon as reasonably practicable give written notice thereof
to the Holders who have not previously consented thereto in writing.
(c) NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to NBCi and each Holder,
respectively, at the following addresses (or at such other address for any party
as shall be specified by like notice, PROVIDED that notices of a change of
address shall be effective only upon receipt thereof):
If to NBCi:
NBC Internet, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: General Counsel
Telecopy: (000) 000-0000
With copies to: Xxxxxxxx & Xxxxxxxx LLP
19
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx Xxxx Xxxx
Telecopy: (000) 000-0000
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
If to CNET: CNET, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx, Chief Financial Officer
Telecopy: (000) 000-0000
With a copies to: CNET, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx Xx Xxx, General Counsel
Telecopy: (000) 000-0000
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: R. Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
If to Disc or Kitze:
Xxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
If to NBC or GE Sub: National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(d) MERGER OR CONSOLIDATION OF NBCI. If NBCi is a party to any
merger or consolidation pursuant to which the Registrable Securities are
converted into or exchanged for securities or the right to receive securities of
any other person ("CONVERSION SECURITIES"), the issuer of such Conversion
Securities shall assume (in a writing delivered to all Holders) all obligations
of NBCi hereunder. NBCi will not effect any merger or consolidation described
in the immediately preceding sentence unless the issuer of the Conversion
Securities complies with this Section 11(d).
(e) SUCCESSORS AND ASSIGNS. Any Holder may assign, in whole or in
part, any of its rights and obligations hereunder to any person who acquires
from such Holder at least $5 million worth of such Holder's Registrable
Securities (calculated based on the average closing price of such securities on
the principal securities exchange or quotation system where such securities are
listed on the five business days immediately preceding the date of such
assignment); PROVIDED, HOWEVER, that any rights pursuant to Section 2 of this
Agreement can only be assigned to (i) a person who acquires at least $50 million
of such Holder's Registrable Securities (calculated as aforesaid), (ii) a
person, in whole and not in part, and (iii) a person who is not a Newco
Competitor, as such term is defined in the Brand Integration and License
Agreement, dated as of May 8, 1999, between NBC Multimedia, Inc. and NBC or,
with respect to an assignment by CNET, a person (including a Newco Competitor)
who has acquired all or substantially all of the stock or assets of CNET through
merger, stock purchase, asset sale or otherwise; PROVIDED that in the event of
such an assignment by CNET, (i) such assignee shall not have the right to cause
an Initial CNET Demand, and (ii) the number of days for which a Shelf
Registration that registers only such assignee's shares (and/or shares issuable
by NBCi) may be postponed or Blacked-Out shall be increased from 90 days to 180
days. Any transferee of all or a portion of the Registrable Securities shall
assume all of the rights and obligations of a Holder hereunder to the extent it
agrees in writing, to be bound by all of the provisions applicable hereunder to
the transferring Holder (such acknowledgment being evidenced by execution of a
Counterpart and Acknowledgment substantially in the form of EXHIBIT A). Subject
to the requirements of this Section 11(e), this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
(f) 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 will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning.
21
(h) GOVERNING LAW. This agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
executed and performed within such State.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) TERMINATION. This Agreement shall terminate with respect to each
Holder and transferee permitted under this Agreement, including, without
limitation, any rights of such Holder or transferee pursuant to Section 11(b),
on the date upon which such Holder or transferee shall be able to dispose of all
of their remaining Registrable Securities in one day without registration
pursuant to Rules 144 or 145 of the Securities Act.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[SIGNATURE PAGE FOLLOWS]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NBC Internet, Inc.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
National Broadcasting Company, Inc.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
GE Investments Subsidiary, Inc.
By: /s/ Xxxxxx X. Healing
-----------------------------------
Name: Xxxxxx X. Healing
Title: Vice President
CNET, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
23
Flying Disc Investments Limited Partnership
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
/s/ Xxxxx Xxxxx
-------------------------------------------
Xxxxx Xxxxx
24
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: NBC Internet, Inc.
RE: The Registration Rights Agreement (the "Agreement") dated as
of November 30, 1999, by and among NBCi and the Holders
(as defined in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits of
the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders pursuant to the Agreement, as fully
and effectively as though the undersigned had executed a counterpart of the
Agreement together with the other parties to the Agreement. The undersigned
hereby acknowledges having received and reviewed a copy of the Agreement.
DATED this _____ day of ____________, _____
________________________________________________
By:_____________________________________________
Title:__________________________________________
Number of
Shares of
Registrable Securities:____________________
25
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Registration Rights Agreement
among
National Broadcasting Company, Inc.
GE Investments Subsidiary, Inc.
CNET, Inc.
Flying Disc Investments Limited Partnership
Xx. Xxxxx Xxxxx
and
NBC Internet, Inc.
(formerly known as "Xenon 2, Inc.")
Dated: November 30, 1999
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
PAGE
----
TABLE OF CONTENTS
-----------------
Section 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2. SHELF REGISTRATION OF RESALES. . . . . . . . . . . . . . . . . . . . . .3
(a) SHELF REGISTRATION STATEMENT.. . . . . . . . . . . . . . . . . . . . . .3
(b) MAINTENANCE OF EFFECTIVENESS.. . . . . . . . . . . . . . . . . . . . . .3
(c) OFFERINGS AND SALES. . . . . . . . . . . . . . . . . . . . . . . . . . .4
(d) POSTPONEMENT OF SHELF REGISTRATION . . . . . . . . . . . . . . . . . . .4
Section 3. DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . .4
(a) REQUESTS FOR REGISTRATION BY HOLDERS . . . . . . . . . . . . . . . . . .4
(b) FILING AND EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . . . . .5
(c) PRIORITY ON DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . . .6
(d) POSTPONEMENT OF DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . .8
Section 4. PIGGYBACK REGISTRATION.. . . . . . . . . . . . . . . . . . . . . . . . .8
(a) RIGHT TO PIGGYBACK . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. . . . . . . . . . . . . . . . . . .8
Section 5. REGISTRATION PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 6. INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. SUSPENSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8. REGISTRATION EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 9. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) INDEMNIFICATION BY NBCi. . . . . . . . . . . . . . . . . . . . . . . . 15
PAGE
----
(b) INDEMNIFICATION BY HOLDERS . . . . . . . . . . . . . . . . . . . . . . 16
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS . . . . . . . . . . . . . . . . 16
(d) CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10. UNDERWRITTEN REGISTRATIONS.. . . . . . . . . . . . . . . . . . . . . . 17
(a) INITIAL CNET DEMAND. . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) OTHER DEMAND REGISTRATIONS . . . . . . . . . . . . . . . . . . . . . . 18
Section 11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . 21
(f) COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(g) HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(h) GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(i) SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(k) ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
