Exhibit 4.3
REALNETWORKS, INC.
ZERO COUPON CONVERTIBLE SUBORDINATED NOTES DUE JULY 1, 2010
REGISTRATION RIGHTS AGREEMENT
June 17, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
RealNetworks, Inc., a Washington corporation (the "Company"), proposes
to issue and sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) its Zero Coupon Convertible
Subordinated Notes due July 1, 2010 (the "Securities"). As an inducement to the
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of Holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
"Act" or "Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Closing Date" means the First Time of Delivery as defined in the
Purchase Agreement.
"Commission" means the U.S. Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"Common Stock" means the Company's common stock, par value $0.001 per
share, together with any associated preferred stock purchase rights.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Holder" means, any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of June 17, 2003, between the
Company and U.S. Bank National Association, as amended and supplemented from
time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Appendix A
hereto.
The term "person" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act) included in the
Shelf 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 Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchase Agreement" means the purchase agreement, dated as of June 11,
2003, between the Purchasers and the Company relating to the Securities.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Common Stock issuable upon conversion or repurchase of such Securities;
provided, however, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
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"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock that (i) has been effectively registered under the Securities Act and sold
in a manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5 of the Indenture.
"Rules and Regulations" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, as the same shall be amended from time to time.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount of Securities that was surrendered for conversion or exchange
in order to receive such number of shares of Common Stock.
2. Shelf Registration.
(a) The Company shall no later than 90 calendar days following the
Closing Date, file with the Commission a Shelf Registration Statement relating
to the offer and sale of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement and, thereafter, shall use its
best efforts to cause such Shelf Registration Statement to be declared effective
under the Act no later than 180 calendar days following the Closing Date;
provided, however, that the Company may, upon written notice to all Holders,
postpone having the Shelf Registration Statement declared effective for a
reasonable period of time not to exceed 90 days if the Company possesses
material non-public information the disclosure of which would be reasonably
likely to have a material adverse effect on the Company and its subsidiaries
taken as a whole; provided, further, that no Holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement or to use
the Prospectus forming a part thereof for resales of Registrable Securities
unless such Holder is an Electing Holder.
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(b) The Company shall use its reasonable efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming a part thereof to be usable
by Holders, subject to Section 3(d)(v), until the earliest of (1) the sale of
all Registrable Securities registered under the Shelf Registration Statement;
(2) the expiration of the period referred to in Rule 144(k) of the Act with
respect to all Registrable Securities held by Persons that are not Affiliates of
the Company; and (3) two years from the date (the "Effective Date") such Shelf
Registration Statement is declared effective (such period being referred to
herein as the "Effectiveness Period");
(ii) After the Effective Time of the Shelf Registration
Statement, reasonably promptly upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, to take any action reasonably
necessary to enable such Holder to use the Prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any action
necessary to identify such Holder as a selling securityholder in the Shelf
Registration Statement; provided, however, that nothing in this subparagraph
shall relieve such Holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(a) hereof;
and, provided further that the Company shall not be obligated to take the
actions described in this Section 2(b)(ii) during (A) any period during which
use of the Prospectus is suspended pursuant to Section 2(c) or (B) any period of
suspension described in Section 3(d)(iii) or 3(d)(iv); and
(iii) If at any time the Securities, pursuant to Article XII
of the Indenture, are convertible into securities other than Common Stock, the
Company shall use reasonable efforts, or shall cause any successor under the
Indenture to use reasonable efforts, to cause such securities to be included in
the Shelf Registration Statement no later than the date on which the Securities
may then be convertible into such securities.
The Company shall be deemed not to have used its reasonable efforts to
keep the Shelf Registration Statement effective during the requisite period if
the Company voluntarily takes any action that would result in the Shelf
Registration Statement being unavailable to Holders of Registrable Securities
covered thereby for the offer and sale of any of such Registrable Securities
thereunder during that period, unless such action is (A) in the good faith
judgment of the Company required by applicable law and the Company thereafter
promptly complies with the requirements of paragraph 3(i) below or (B) permitted
pursuant to Section 2(c) below.
(c) The Company may suspend the use of the Prospectus for one or more
periods not to exceed 30 days in any 90-day period or an aggregate of 90 days in
any 365-day period if the Board of Directors of the Company shall have
determined in good faith that because of valid business reasons (not including
avoidance of the Company's obligations hereunder), including without limitation
the acquisition or divestiture of assets, pending corporate developments and
similar events, it is in the best interests of the Company to suspend such use,
and prior to suspending such use the Company provides the Electing Holders with
written notice of such suspension, which notice need not specify the nature of
the event giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the time the Company
intends in good faith to have the Shelf Registration Statement declared
effective, the Company shall mail the Notice and Questionnaire to the Holders of
Registrable Securities. No Holder shall be entitled
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to be named as a selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no Holder shall be entitled to use the Prospectus
forming a part thereof for resales of Registrable Securities at any time, unless
such Holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided, however,
Holders of Registrable Securities shall have at least 28 calendar days from the
date on which the Notice and Questionnaire is first mailed to such Holders to
return a completed and signed Notice and Questionnaire to the Company.
(ii) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such Holder. The Company shall not be required to take any
action to name such Holder as a selling securityholder in the Shelf Registration
Statement or to enable such Holder to use the Prospectus forming a part thereof
for resales of Registrable Securities until such Holder has returned a completed
and signed Notice and Questionnaire to the Company.
(iii) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(i) or 3(a)(ii)
hereof.
(b) The Company shall (i) promptly furnish to each Electing Holder,
prior to the Effective Time, a copy of the Shelf Registration Statement
initially filed with the Commission, and shall furnish to such Electing Holders,
prior to the filing thereof with the Commission, copies of each amendment
thereto and each amendment or supplement, if any, to the Prospectus included
therein, and shall use its reasonable efforts to reflect in each such document,
at the Effective Time or when so filed with the Commission, as the case may be,
such comments as such Electing Holders and their respective counsel reasonably
may propose in writing as being legally necessary.
(c) The Company shall promptly take such action as may be necessary so
that (i) each of the Shelf Registration Statement and any amendment thereto and
the Prospectus forming a part thereof and any amendment or supplement thereto
(together with each report or other document incorporated therein by reference
in each case) complies in all material respects with the Securities Act and the
Exchange Act and the respective rules and regulations thereunder, (ii) each of
the Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, 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 not misleading, and the Prospectus forming a part thereof
does not, when the registration statement of which it forms a part becomes
effective, 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 the light of the circumstances in which they were made, not
misleading, and (iii) each of the Prospectus forming a part of the Shelf
Registration Statement, and any amendment or supplement to such Prospectus, does
not during the Effectiveness Period include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) The Company shall promptly advise each Electing Holder, and shall
confirm such advice in writing if so requested by any such Holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when a Shelf Registration
Statement or any post-effective
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amendment thereto has become effective, in each case making a public
announcement thereof by release made to Reuters Economic Services and Bloomberg
Business News;
(ii) of any request by the Commission after the Effective Time
for amendments or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included in the
Shelf Registration Statement for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(v) of the occurrence of any event or the existence of any
state of facts that requires the making of any changes in the Shelf Registration
Statement or the Prospectus included therein so that, as of such date, such
Shelf Registration Statement and Prospectus do not contain an untrue statement
of a material fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an instruction to such Holders
to suspend the use of the Prospectus until the requisite changes have been
made); provided that the Company shall not be required to disclose the substance
of such event or facts.
(e) The Company shall use its best efforts to prevent the issuance, and
if issued to obtain the withdrawal, of any order suspending the effectiveness of
the Shelf Registration Statement at the earliest practicable time. Upon the
receipt of the notice contemplated in Section 3(d)(iii), (iv) or (v), the
Electing Holders shall cease the use of the Prospectus until such suspension of
effectiveness of the Shelf Registration Statement or suspension of the
qualification of the securities included therein, as applicable, has been
withdrawn.
(f) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such Electing Holder may reasonably
request in writing; and the Company consents (except during a suspension period
pursuant to Section 2(c) hereof or during the continuance of any event or the
existence of any state of facts described in Section 3(d)(v) above) to the use
of the Prospectus and any amendment or supplement thereto by each of the
Electing Holders in connection with the offering and sale of the Registrable
Securities covered by the Prospectus and any amendment or supplement thereto
during the Effectiveness Period.
(g) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall (i) register or qualify or
cooperate with the Electing Holders 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 Electing Holder may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for so long as
may be necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (iii) take any and all other actions necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no
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event shall the Company be obligated to (A) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3(g) or (B) file any general consent
to service of process in any jurisdiction where it is not as of the date hereof
so subject.
(h) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to the Shelf Registration Statement, which certificates, if so
required by any securities exchange upon which any Registrable Securities are
listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations and
registered in such names as Electing Holders may request in connection with the
sale of Registrable Securities pursuant to the Shelf Registration Statement.
(i) Upon the occurrence of any event or the existence of any state of
facts contemplated by paragraph 3(d)(v) above, the Company shall promptly
prepare a post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Registrable
Securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Company notifies the Electing Holders of the
occurrence of any event or the existence of any state of facts contemplated by
paragraph 3(d)(v) above, the Electing Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.
(j) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(k) The Company shall use its reasonable efforts to comply with all
applicable Rules and Regulations, and to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after (i) the effective date (as defined in Rule 158(c) under the
Securities Act) of the Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to the Shelf Registration Statement, and (iii) the
date of each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf Registration Statement,
an earnings statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158).
(l) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under the Trust
Indenture Act; in connection with such qualification, the Company shall
cooperate with the Trustee under the Indenture and the Holders (as defined in
the Indenture) to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner.
In the event that any such amendment or modification referred to in this Section
3(j) involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
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(m) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Managing Underwriters reasonably
agree should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(n) The Company shall enter into such customary agreements (including
an underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 6 hereof) and take all other required
action in order to facilitate the registration and disposition of the
Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in Section 5 hereof
with respect to all parties to be indemnified pursuant to Section 5 hereof;
provided that the Company shall not be required to agree to any negative
covenants.
(o) The Company shall:
(i) (A) make reasonably available for inspection during
ordinary business hours by the Electing Holders, any underwriter participating
in any disposition under the Shelf Registration Statement pursuant to an
underwritten offering conducted pursuant to Section 6, and any attorney,
accountant or other agent retained by such Electing Holders or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and (B) cause the
Company's officers, directors and employees to supply all information reasonably
requested by such Electing Holders or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided, however, that all
records, information and documents that are disclosed pursuant to this paragraph
shall be kept confidential by such Electing Holders and any such underwriter,
attorney, accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such records, information or documents
become available to the public generally or through a third party without an
accompanying obligation of confidentiality, and, provided further that, if the
foregoing inspection and information gathering would otherwise disrupt the
Company's conduct of its business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of the Electing
Holders and the other parties entitled thereto by one counsel for the
underwriters, if any, and one counsel designated by and on behalf of the
Electing Holders and other parties; in the event that any Holder, attorney,
accountant or agent is required to disclose confidential information of the
Company by law or in a court proceeding, such Holder, attorney, accountant or
agent will provide the Company with notice of such disclosure requirement and
copies of the information to be disclosed, if possible, and will cooperate with
the Company, to the extent reasonably practicable, to limit such disclosure;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties to the
Electing Holders participating in such underwritten offering and to the Managing
Underwriters as they may reasonably request, in form, substance and scope as are
customarily made by companies similarly situated to the Company to underwriters
in primary underwritten offerings of equity and convertible debt securities and
covering matters including, but not limited to, those set forth in the Purchase
Agreement;
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(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the Company (which
opinions (in form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters) addressed to each Electing Holder participating in such
underwritten offering and the underwriters, covering such matters as are
customarily covered in opinions requested in primary underwritten offerings of
equity and convertible debt securities by companies similarly situated to the
Company and such other matters as may be reasonably requested by such Electing
Holders and underwriters (it being agreed that the matters to be covered by such
opinions shall include, without limitation, as of the date of the opinion and as
of the Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, (i) the absence from the
Shelf Registration Statement of an untrue statement of a material fact or the
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading and (ii) the absence from the Prospectus,
including the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made);
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and updates thereof
from the independent public accountants of the Company (and, if necessary, from
the independent public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration Statement),
addressed to each Electing Holder participating in such underwritten offering
(if such Electing Holder has provided such letter, representations or
documentation, if any, required for such cold comfort letter to be so addressed)
and the underwriters, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and certificates as may be
reasonably requested by any Electing Holders participating in such underwritten
offering and the Managing Underwriters, if any, including, without limitation,
certificates to evidence compliance with Section 3(i) hereof and with any
conditions contained in the underwriting agreement or other agreements entered
into by the Company.
(p) The Company will use its reasonable efforts to cause the Common
Stock issuable upon conversion of the Securities to be listed for quotation on
the Nasdaq National Market or other stock exchange or trading system on which
the Common Stock primarily trades on or prior to the Effective Time of the Shelf
Registration Statement hereunder.
(q) In the event that any broker-dealer registered under the Exchange
Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or
any successor provision thereto)) of the Company or has a "conflict of interest"
(as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision
thereto)) and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution of any
Registrable Securities covered by the Shelf Registration Statement, whether as a
Holder of such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the Company shall
provide to such broker-dealer, upon written request by such broker-dealer at
such broker-dealer's sole expense, such information as may be required in order
for such broker-dealer to comply with the requirements of the NASD Rules.
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(r) The Company shall use its reasonable efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. Except as otherwise provided in Section 3,
the Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2 and 3 and 6 hereof and shall
bear or reimburse the Electing Holders for the reasonable fees and disbursements
of a single counsel, if any, selected by Electing Holders who own at least a
majority in aggregate principal amount of the Registrable Securities covered by
the Shelf Registration Statement to act as counsel therefore in connection
therewith. Each Electing Holder shall pay all commissions and transfer taxes and
other fees and expenses incurred by such Holder (other than those expenses
specifically provided for above in this Section 4), if any, relating to the sale
or disposition of such Electing Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder, and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of the Prospectus, in light of the circumstances under which they were made),
and the Company hereby agrees to reimburse such Indemnified Person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such Indemnified Person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein; provided further that the Company shall not be liable
to any such Indemnified Person in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon such Indemnified
Person's use of such Prospectus (1) following notice of the occurrence of any
event contemplated by paragraph 3(d)(v) above and before the earlier to occur of
(a) such time as the requisite changes to the Prospectus have been made in
accordance with the provisions of paragraph 3(h) above or (b) the expiration of
the time periods set forth in paragraph 2(c), or (2) following notice of the
occurrence of any event contemplated by paragraphs 3(d)(iii) or (iv) above and
before the withdrawal of the suspension contemplated by such notice.
10
(b) Indemnification by the Electing Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Electing Holder's Registrable Securities in such Shelf Registration
Statement, and each underwriter, selling agent or other securities professional,
if any, which facilitates the disposition of Registrable Securities shall agree,
as a consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which the Company or
such other persons may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such Shelf Registration Statement or
Prospectus, or any amendment or supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of the Prospectus, in light of the circumstances under which they were
made), in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Electing Holder, underwriter, selling agent or other securities
professional expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 5, except
to the extent that the indemnifying party has been materially prejudiced by such
failure to promptly notify. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party under this Section 5 for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party. In no event will any indemnifying party be liable for
fees and disbursements of more than one counsel, plus the fees and disbursements
of any local counsel, for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general obligations or circumstances, unless an
indemnified party
11
reasonably determines that representation of such indemnifying party and the
indemnified party by the same counsel would present a conflict of interest.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them 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 this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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 obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability that the Company may otherwise have to any Indemnified
Person and the obligations of any Indemnified Person under this Section 5 shall
be in addition to any liability that such Indemnified Person may otherwise have
to the Company. The remedies provided in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to an
indemnified party at law or in equity.
12
6. Underwritten Offering. Any Holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least
33-1/3% in aggregate principal amount of the Registrable Securities then covered
by the Shelf Registration Statement shall request such an offering and (ii) at
least such aggregate principal amount of such Registrable Securities shall be
included in such offering; and provided further that the Company shall not be
obligated to cooperate with more than one underwritten offering during the
Effectiveness Period. Upon receipt of such a request, the Company shall provide
all Holders of Registrable Securities written notice of the request, which
notice shall inform such Holders that they have the opportunity to participate
in the offering. In any such underwritten offering, the investment banker or
bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto (including
the size of the offering) will be approved by, the holders of a majority of the
Registrable Securities to be included in such offering; provided, however, that
such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Company. No Holder may participate in any
underwritten offering contemplated hereby unless (a) such Holder agrees to sell
such Holder's Registrable Securities to be included in the underwritten offering
in accordance with any approved underwriting arrangements, (b) such Holder
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements, and (c) if
such Holder is not then an Electing Holder, such Holder returns a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(a)(ii) hereof within a reasonable amount of time before such underwritten
offering. The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and, subject
to Section 4 hereof, expenses of their own counsel. The Company shall pay all
expenses customarily borne by issuers in an underwritten offering, including but
not limited to filing fees, the fees and disbursements of its counsel and
independent public accountants, and any printing expenses incurred in connection
with such underwritten offering. Notwithstanding the foregoing or the provisions
of Section 3(n) hereof, upon receipt of a request from the Managing Underwriter
or a representative of holders of a majority of the Registrable Securities to be
included in an underwritten offering to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection with
an underwritten offering, the Company may delay the filing of any such amendment
or supplement for up to 90 days if the Board of Directors of the Company shall
have determined in good faith that the Company has a bona fide business reason
for such delay.
7. Liquidated Damages.
(a) Notwithstanding any postponement of effectiveness permitted by
Section 2(a) hereof, if (i) on or prior to the 90th day following the Closing
Date, a Shelf Registration Statement has not been filed with the Commission or
(ii) on or prior to the 180th day following the Closing Date, such Shelf
Registration Statement is not declared effective by the Commission (each, a
"Registration Default"), the Company shall be required to pay liquidated damages
("Liquidated Damages"), from and including the day following such Registration
Default until such Shelf Registration Statement is either so filed or so filed
and subsequently declared effective, as applicable. Such Liquidated Damages
shall be paid semi-annually in arrears, with the first semi-annual payment due
on the first July 1 or January 1 following the date of such Registration
Default, at a rate per annum equal to one-quarter of one percent (0.25%) of the
principal amount of Registrable Securities, to and including the 90th day
following such Registration Default and one-half of one percent (0.5%) thereof
from and after the 91st day following such Registration Default. In no event
shall the Company be required to pay
13
Liquidated Damages under this Section 7(a) at a rate per annum in excess of
one-half of one percent (0.5%) of the principal amount of Registrable
Securities.
(b) In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company from effecting sales pursuant thereto) (an "Effective
Failure") for more than 30 days, whether or not consecutive, in any 90-day
period, or more than 90 days, whether or not consecutive, during any 365-day
period, then the Company shall pay Liquidated Damages at a rate per annum equal
to one-half of one percent (0.5%) of the principal amount of Registrable
Securities from the first day that the 30-day or 90-day period is exceeded,
whichever occurs first, until the earlier of (i) the time the Holders of
Registrable Securities are again able to make sales under the Shelf Registration
Statement or (2) the time the Effectiveness Period expires. For the purpose of
determining an Effective Failure, days on which the Company has been obligated
to pay Liquidated Damages in accordance with the foregoing in respect of a prior
Effective Failure within the applicable 90-day or 12-month period, as the case
may be, shall not be included. In no event shall the Company be required to pay
Liquidated Damages under this Section 7(b) at a rate per annum in excess of
one-half of one percent (0.5%) of the principal amount of Registrable
Securities.
(c) Any amounts to be paid as Liquidated Damages pursuant to paragraphs
(a) or (b) of this Section 7 shall be paid in cash semi-annually in arrears,
with the first semi-annual payment due on the first July 1 or January, as
applicable, following the date of such Registration Default or Effective
Failure, as applicable. Such Liquidated Damages will accrue (1) in respect of
the Securities at the rates set forth in paragraphs (a) or (b) of this Section
7, as applicable, on the principal amount of the Securities and (2) in respect
of the Common Stock issued upon conversion of the Securities, at the rates set
forth in paragraphs (a) or (b) of this Section 7, as applicable, applied to the
Conversion Price (as defined in the Indenture) at that time.
(d) Except as provided in Section 8(b) hereof, the Liquidated Damages
as set forth in this Section 7 shall be the exclusive monetary remedy available
to the Electing Holders of Registrable Securities for such Registration Default
or Effective Failure.
8. Miscellaneous.
(a) Other Registration Rights. The Company may not grant registration
rights that would in any way prevent, delay or otherwise impair the ability of
the Company to satisfying in full its obligations to provide the registration
rights granted hereunder.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the Holders from time to time
may be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such Holders, in addition to any other remedy to which they may
be entitled at law or in equity and without limiting the remedies available to
the Electing Holders under Section 7 hereof, shall be entitled to compel
specific performance of the obligations of the Company under this Registration
Rights Agreement in accordance with the terms and conditions of this
Registration Rights Agreement, in any court of the United States or any State
thereof having jurisdiction.
(c) Entire Agreement; Amendments and Waivers. This Agreement and the
other writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement, including this Section 8(c), may be amended,
14
and waivers or consents to departures from the provisions hereof may be given,
only by a written instrument duly executed by the Company and the holders of a
majority in aggregate principal amount of Registrable Securities then
outstanding. Each Holder of Registrable Securities outstanding at the time of
any such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this Section 8(c), whether or
not any notice, writing or marking indicating such amendment, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(e) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(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 shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) 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 in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(j) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.
15
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
RealNetworks, Inc.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and General Counsel
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
---------------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
16
APPENDIX A
REALNETWORKS, INC.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
(DATE)
RealNetworks, Inc. (the "Company") has filed or intends shortly to file with the
U.S. Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the U.S. Securities Act of 1933, as amended (the
"Securities Act"), of the Company's Zero Coupon Convertible Subordinated Notes
due July 1, 2010 (CUSIP No. 00000XXX0) (the "Notes"), and the shares of common
stock, par value $.001 per share (the "Common Stock") issuable upon conversion
thereof, in accordance with the terms of the Registration Rights Agreement,
dated as of June 17, 2003 (the "Registration Rights Agreement"), between the
Company and the purchasers named therein. A copy of the Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Registration Rights Agreement.
In order to have Registrable Securities included in the Shelf
Registration Statement (or a supplement or amendment thereto), this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company at the
address set forth herein for receipt ON OR BEFORE [insert date that is 28 days
from the Notice Date] (the "Questionnaire Deadline"). Unless the Company
otherwise consents in writing, beneficial owners of the Registrable Securities
who do not complete, execute and return this Notice and Questionnaire by such
date (i) will not be named as selling securityholders in the Shelf Registration
Statement and (ii) may not use the Prospectus forming a part thereof for resales
of Registrable Securities. Beneficial owners of Registrable Securities not
having returned a Notice and Questionnaire by the Questionnaire Deadline may,
however, receive another Notice and Questionnaire from the Company upon request.
Following its receipt of a completed and signed Notice and Questionnaire, the
Company will include the Registrable Securities covered thereby in the Shelf
Registration Statement, subject to certain restrictions described in the
Registration Rights Agreement.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Notes issued under the Trust
Indenture in registered form and the shares of Common Stock issuable upon
conversion of such Notes, provided, however, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.
17
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Note or share of Common Stock issuable upon conversion
thereof except any such Note or share of Common Stock which (i) has been
registered pursuant to an effective registration statement under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement, (ii)
has been transferred in compliance with Rule 144 under the Securities Act (or
any successor provision thereto) or is transferable pursuant to paragraph (i) of
Such Rule 144 (or any successor provision thereto), or (iii) has otherwise been
transferred and a new Note or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5 of the Indenture.
18
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and the Trustee the Notice of Transfer (completed and signed) set
forth in Exhibit 1 to this Notice and Questionnaire.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
19
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) Below:
--------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) Below are Held:
--------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
Telephone:
---------------------------------------------------
Fax:
---------------------------------------------------------
Contact Person:
----------------------------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned Selling
Securityholder does not beneficially own any Securities or shares of
Common Stock issued upon conversion or repurchase of any Securities.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:
------------
CUSIP No(s). of such Registrable Securities:
-----------------
Number of shares of Common Stock (if any) issued upon
conversion or repurchase of Registrable Securities:
-----------
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
--------------------------------
--------------------------------------------------------------
CUSIP No(s). of such other Securities:
-----------------------
Number of shares of Common Stock (if any) issued upon
conversion of such other Securities:
-------------------------
20
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:
----------------------------------------------------
CUSIP No(s). of such Registrable Securities to be included in
the Shelf Registration Statement:
----------------------------
Number of shares of Common Stock (if any) issued upon
conversion of Registrable Securities which are to be included
in the Shelf Registration Statement:
-------------------------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares
of Common Stock or any other securities of the Company, other than the
Securities and shares of Common Stock listed above in Item (3).
State any exception here:
-----------------------------------------------------------------------
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, director or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
-----------------------------------------------------------------------
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchanges or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholders may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
-----------------------------------------------------------------------
21
Note: In no event may such method(s) of distribution take the
form of an underwritten offering of the Registrable Securities
without the prior agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and the Exchange
Act and the rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing by hand delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
RealNetworks, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
(ii) With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
22
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
----------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
---------------------------------------------------------------------
Name:
------------------------------------------------------------------
Title:
-----------------------------------------------------------------
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR
RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE], 2003 TO THE COMPANY AT:
RealNetworks, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
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EXHIBIT 1
TO APPENDIX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Bank National Association
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Services
RealNetworks, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
RE: ZERO COUPON CONVERTIBLE SUBORDINATED NOTES DUE JULY 1, 2010
(THE "NOTES")
Dear Sirs:
Please be advised that _____________________ has transferred $ ________
aggregate principal amount of the above-referenced Notes or shares of the
Company's common stock, issued upon conversion, repurchase or redemption of
Notes, pursuant to an effective Registration Statement on Form S-3 (File No.
333-_________) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Notes
or common stock is named as a selling securityholder in the Prospectus dated
[DATE], or in amendments or supplements thereto, and that the aggregate
principal amount of the Notes or number of shares of common stock transferred
are [A PORTION OF] the Notes or shares of common stock listed in such Prospectus
as amended or supplemented opposite such owner's name.
Dated: Very truly yours,
--------------------
---------------------------------
(Name)
By:
-----------------------------
(Authorized Signature)
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