EXHIBIT 10.38
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _______ ___, 1999, between
Microsoft Corporation, a Washington corporation ("Holder"), and Ticketmaster
Online-CitySearch, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Company, the Holder, Ticketmaster Acquisition, Inc., a
Nevada corporation ("Sub") and Xxxxxxxx.xxx, Inc., a Nevada corporation
("Sidewalk"), have entered into that certain Agreement and Plan of Merger
dated as of July 19, 1999 (the "Merger Agreement") providing, among other
things, for the merger of Sidewalk with and into Sub;
WHEREAS, in connection with the transactions contemplated in the
Merger Agreement (i) the Company has issued to the Holder 7,000,000 shares of
Class B Common Stock, par value $.0001 per share of the Company ("Common
Stock") and (ii) the Company has granted to the Holder certain warrants to
purchase an aggregate of 4,500,000 shares of Common Stock (the "Warrants");
and
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Merger Agreement that the parties hereto enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
AGREEMENT
1. DEFINITIONS.
The following capitalized terms, as used in this Agreement, have the
following meanings:
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in Los Angeles, California are authorized by law to
close.
"COMMISSION" means the Securities and Exchange Commission.
"REGISTRABLE SECURITIES" means shares of Common Stock of the Company
issuable to Holder upon (A) the Effective Time, as such term is defined in
the Merger Agreement and (B) exercise of the Warrants at any time owned,
either of record or beneficially, by Holder unless and until (i) a
registration statement covering all such shares has been declared effective
by the Commission and the shares have been issued by the Company to Holder
upon the Effective Time, as such term is defined in the Merger Agreement or
conversion of the Warrants pursuant to the effective registration statement
or have been sold or transferred by Holder to another person pursuant to the
effective registration statement, (ii) such shares are sold pursuant to the
provisions of Rule 144 under the Securities Act (or any similar provisions
then in force) ("Rule 144"), (iii) such shares are held by a holder who is
not an affiliate of the Company within the meaning of Rule 144 (a "Rule 144
Affiliate") and may be sold pursuant to Rule 144(k) under the Securities Act
or (iv) all of such shares have been otherwise transferred in a transaction
that would constitute a sale under the Securities Act and such shares may be
resold without subsequent registration under the Securities Act.
"S-3 AVAILABILITY DATE" means any date on which Form S-3 (or a similar
successor form of registration statement) is available to the Company for the
registration of Registrable Securities pursuant to the Securities Act.
"S-3 EXPIRATION DATE" means the date subsequent to the S-3
Availability Date on which Form S-3 (or a similar successor form of
registration statement) is not available to the Company for the registration
of Registrable Securities pursuant to the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
2. SHELF REGISTRATION.
Subject to the provisions of Section 3, the Company shall file with
the Commission a registration statement on Form S-3 (the "Shelf") for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (or any similar rule that may be adopted by the
Commission) covering the resale of Registrable Securities, such filing to be
made as soon as practicable following the S-3 Availability Date. The Company
shall use its reasonable efforts to cause the registration statement filed
with the Commission pursuant to this Section 2 to be declared effective by
the Commission as soon as practicable following the filing. The registration
of the Registrable Shares so effected by the Company pursuant to this Section
2 is referred to herein as a "Shelf Registration." The Company shall use its
reasonable efforts to keep the registration statement relating to the Shelf
Registration continuously effective (a) until the earlier of (i) the S-3
Expiration Date, (ii) the date on which all of the shares of Common Stock
issuable to Holder upon the Effective Time (as such term is defined in the
Merger Agreement) and upon Exercise of the Warrants owned, either of record
or beneficially, by Holder and registered pursuant to the Shelf Registration
are sold (the "Full Sale Date") and (iii) the date on which all of the shares
of Common Stock issuable to Holder upon the Effective Time (as such term is
defined in the Merger Agreement) and upon Exercise of the Warrants no longer
constitute Registrable Securities by reason of clause (iii) or (iv) of the
definition of "Registrable Securities" above and (b) during any Reinstatement
Period (as defined below).
3. REGISTRATION RIGHTS IF FORM S-3 IS NOT AVAILABLE.
The following provisions shall apply with respect to Registrable
Securities during the period, if any, beginning on the S-3 Expiration Date
and ending on the Full Sale Date
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(the "Supplemental Rights Period"); PROVIDED, HOWEVER, that the Supplemental
Rights Period shall commence on the six month anniversary of the Closing Date
(as such term is defined in the Merger Agreement) in the event that the S-3
Availability Date has not occurred prior to such date; PROVIDED, FURTHER,
that the Supplemental Rights Period shall not include (x) any period during
which the Shelf Registration is effective and (y) any period following the
S-3 Expiration Period and prior to the Full Sale Date if during that period
(the "Reinstatement Period") the Company shall again be entitled to use Form
S-3 (or a similar successor form of registration statement) for registration
of the Registrable Securities. During the Supplemental Rights Period, the
Holder shall have the following rights:
3.1 DEMAND RIGHT. Holder or any permitted assignee of Holder who
holds in excess of 1,000,000 Registrable Securities may make a written
request to the Company for registration of a minimum of 1,000,000 of the
Registrable Shares under the Securities Act and the securities or "blue sky"
laws of any jurisdictions designated by the holder of Registrable Securities
making such request (the "Demand"). Each Demand shall specify the number of
Registrable Shares proposed to be sold and shall also specify the intended
method of disposition thereof. Upon receipt of a Demand, the Company shall,
as promptly as possible (but in no event later than 14 days prior to the
filing of the registration statement relating to such Demand), give written
notice of such Demand to all holders of Registrable Securities. Within 14
days after receipt of such notice, each holder of Registrable Securities
shall notify the Company of the number of Registrable Shares, if any, that
such holder wishes to have included in the Demand Registration. Promptly
upon receiving the Demand and in accordance with the procedures set forth in
Section 4 of this Agreement, the Company shall use its reasonable commercial
efforts to effect the registration under the Securities Act of all
Registrable Shares requested to be registered so as to permit the disposition
thereof (in accordance with the methods described in the Demand). The
registration of the Registrable Shares so effected by the Company pursuant to
this Section is referred to herein as a "Demand Registration."
Notwithstanding the foregoing, the Company shall not be required to (i)
effect more than two (2) Demand Registrations with respect to the Registrable
Shares in the aggregate for Holder and all permitted assignees who are
holders of Registrable Securities, (ii) effect any registration in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration unless
the Company is already subject to service of process in such jurisdiction or
(iii) effect a Demand Registration pursuant to a request for such received by
the Company until ninety (90) days shall have elapsed following the effective
date of a registration statement previously filed by the Company pursuant to
this Section 3.1. In addition, if (i) counsel to the Company (which counsel
shall be experienced in securities law matters and of national reputation)
has determined in good faith that the Company then is unable to comply with
its disclosure obligations (because it would otherwise need to disclose
material information which the Company has a BONA FIDE business purpose for
preserving as confidential) or Commission requirements in connection with a
registration statement and (ii) the Company shall have provided Holder
notice of the determination contemplated by clause (i) above within five (5)
Business Days of such determination,
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then the Company shall not be required to file a registration statement
pursuant to this Section 3.1 for a period expiring upon the earlier to occur
of (x) the date on which such material information is disclosed to the public
or ceases to be material or the Company is able to comply with its disclosure
obligations and Commission requirements or (y) 60 days after counsel to the
Company makes such good faith determination.
(1) EFFECTIVE REGISTRATION. A Demand Registration shall not
be deemed to be effective unless the registration statement relating thereto
has been declared effective by the Commission. Additionally, a Demand
Registration shall not be deemed to have been effected for the purpose of the
limitation on the number of Demand Registrations set forth in Section 3.1 if:
(a) the registration statement relating thereto does
not remain effective, current and usable by Holder until the earlier of (A)
the 90th day following the date on which such registration statement became
effective, subject to the last sentence of Section 4.1 herein and (B) the
date on which all of the Registrable Shares requested in the Demand to be
sold pursuant to such registration statement are sold;
(b) after the registration statement relating thereto
has become effective, such registration statement is interfered with by any
stop order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason prior to the earlier of (A)
the 90th day following the date on which such registration statement became
effective, subject to the last sentence of Section 4.1 herein and (B) the
date on which all of the Registrable Shares requested in the Demand to be
sold pursuant to such registration statement are sold;
(c) in an underwritten offering, the number of
securities to be included in such offering is reduced as required by the
managing underwriting thereof pursuant to Section 3.1(b) to a number which is
less than all of the Registrable Shares requested in the Demand to be sold
pursuant to the registration statement relating thereto; or
(c) the conditions to closing specified in any
purchase agreement or underwriting agreement entered into in connection with
such Demand Registration are not satisfied, unless the failure to satisfy
such conditions to closing is due to some act or failure to act of Holder.
(2) UNDERWRITTEN OFFERINGS.
(a) If in any Demand, Holder proposes to dispose of
the Registrable Shares in an underwritten offering, Holder shall notify the
Company and the Company and Holder shall agree, with each party acting in
good faith, to jointly appoint the investment banking firm to act as the
manager that will administer the offering. The Company will enter into an
underwriting agreement with the underwriters for such offering (such
agreement to be reasonably satisfactory to both the Company and Holder),
which agreement will contain such representations and warranties by the
Company and
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such other terms as are generally prevailing in agreements of this type,
including without limitation, indemnities at least to the effect and to the
extent provided in Section 6 hereof. The Company and Holder will cooperate
with each other in good faith in the negotiation of the underwriting
agreement; PROVIDED, HOWEVER, that nothing contained herein shall diminish
the foregoing obligations of the Company. Holder shall not be required to
make any representations or warranties or agreements, other than
representations regarding Holder, the Registrable Shares and Holder's
intended method of distribution.
(b) If the managing underwriter of an underwritten
offering pursuant to Section 3.1 delivers a written statement to Holder that
the total amount of securities requested to be included in such offering is
sufficiently large so as materially and adversely to affect the distribution
thereof, then the number of securities that may be included in the
underwriting shall be reduced as required by the managing underwriter and
allocated first, to Holder and second, to the Company with respect to shares
being registered by the Company for its own account and/or by other holders
of shares in such manner and amounts and by the Company or such other
holders, as the Company may determine.
(3) PRICE DETERMINATION. Holder shall have the sole right
to determine the offering price per share and underwriting discounts, if
applicable, in connection with any resales of Registrable Securities by it
pursuant to Section 3.1, after consultation with the Company and due regard
for the Company's views relating thereto. The Company shall have the sole
right to determine the offering price per share and underwriting discounts,
if applicable, in connection with any sales of shares of Common Stock by the
Company for its own account in connection with an offering made pursuant to
Section 3.1.
3.2 PIGGYBACK RIGHTS. If at any time during the Supplemental
Rights Period the Company proposes to register under the Securities Act an
offering of Common Stock, then, as promptly as possible (but in no event
later than 14 days prior to the filing of the registration statement relating
to such offering), the Company shall give to Holder a written notice
describing in detail the proposed registration (including the intended method
of distribution and the jurisdictions in which registration under the
securities or blue sky laws is intended). Within 14 days after receipt of
such notice, Holder shall notify the Company of the number of Registrable
Shares, if any, that Holder wishes to have included in such registration
statement. The Company will use its reasonable commercial efforts to effect
the registration under the Securities Act of the number of Registrable Shares
that Holder shall have requested, to the extent required to permit the
disposition of such Registrable Shares upon the same terms (including the
method of distribution), as any other Company equity securities to be
included in such offering. The registration of the Registrable Shares so
effected by the Company pursuant to this Section 3.2 is referred to herein as
a "Piggy-back Registration."
(1) UNDERWRITTEN OFFERINGS. If the securities proposed to
be registered by the Company pursuant to Section 3.2 are to be disposed of in
an underwritten public
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offering, the notice of the Company's intention to effect such registration
shall designate the proposed managing underwriters of such offering (which
shall be one or more underwriting firms of recognized national standing) and
shall contain the Company's agreement to use its reasonable commercial
efforts to arrange for such underwriters to include in such underwriting any
Registrable Shares that Holder requests the Company to register pursuant to
Section 3.2. Notwithstanding the foregoing, if the managing underwriter
determines that marketing factors require limitations on the number of shares
to be underwritten, the managing underwriter may limit (or exclude entirely)
the Registrable Shares to be included in such registration. The Company
shall advise Holder and any other holders distributing their securities
through such underwriting of any such limitation, and the number of
Registrable Shares and other securities that may be included in the
registration shall be allocated among Holder and such other holders in
proportion as nearly as practicable to the respective amounts of securities
proposed to be sold by each such person in the registration; PROVIDED,
HOWEVER, that such allocation need not be made proportionately among Holder
and such other holders if the offering is made pursuant to a demand
registration by a holder or holders other than Holder.
(2) EXCEPTIONS. Notwithstanding the provisions of Section
3.2, the Company (i) shall not be required to give notice or effect a
Piggy-back Registration if the Company's proposed registration is (a) a
registration of an employee stock ownership, stock option, stock purchase or
other employee incentive plan or arrangement adopted in the ordinary course
of business on Form S-8 (or any successor or other appropriate form) or (b) a
registration of securities on Form S-4 (or any successor or other appropriate
form) proposed to be issued in exchange for securities or assets of, or in
connection with a merger or consolidation with, another corporation or (ii)
may withdraw, without the consent of Holder, a registration statement that
the Company had filed as contemplated by Section 3.2 and abandon the proposed
offering in which Holder had requested to participate.
(3) PRICE DETERMINATION. The Company shall have the sole
right to determine the offering price per share and underwriting discounts in
connection with any resale by Holder of Registrable Shares pursuant to an
underwritten offering in connection with a Piggy-back Registration, after
consultation with Holder and due regard for Holder's view relating thereto.
(4) EFFECT OF PIGGY-BACK REGISTRATION. Subject to
compliance with the terms of Section 3.1, no Piggy-back Registration effected
by the Company shall relieve the Company from its obligations to effect any
Demand Registration or a Shelf Registration.
4. GENERAL PROVISIONS.
4.1 REGISTRATION PROCEDURES. If and whenever the Company is
required to effect a Demand Registration, a Shelf Registration or a
Piggy-back Registration, the Company shall:
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(1) (a) in the case of a Demand Registration or a Piggy-back
Registration, promptly (but in no event, with respect to a Demand
Registration only, later than 45 days following the delivery of the Demand)
prepare and file with the Commission a registration statement on a form for
which the Company then qualifies or which counsel for the Company shall deem
appropriate with respect to such Registrable Shares (and which form shall be
available for the sale of the Registrable Shares in accordance with the
intended methods of distribution thereof); (b) use its reasonable commercial
efforts to cause such registration statement to become effective as soon as
practicable following the delivery of the Demand or request for Piggy-back
Registration, as the case may be, or on the date of filing in the case of a
Shelf Registration and (c) furnish to Holder prior to the filing of such
registration statement copies of drafts and final conformed versions of such
registration statement as is proposed to be filed;
(2) (a) promptly prepare and file with the Commission such
amendments, post-effective amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective and to comply with the rules,
regulations or instructions of the registration form utilized by the Company,
the Securities Act and the rules and regulations thereunder with respect to
the disposition of all Registrable Shares and other securities covered by
such registration statement until such time as Holder shall have disposed of
all such Registrable Shares in accordance with the intended methods of
disposition or, in the case of a Shelf Registration, as provided in Section
2; PROVIDED, HOWEVER, notwithstanding the foregoing of this Section
4.1(2)(a), in all events the Company shall keep the registration statement
effective as required by the Securities Act; (b) Company shall promptly
furnish to Holder, in the case of a Demand Registration, Piggyback
Registration or a Shelf Registration prior to the filing thereof, a copy of
any amendment, post-effective amendment or supplement to such registration
statement or prospectus; and (c) Company shall not file any such amendment,
post-effective amendment or supplement with respect to a Demand Registration
or a Shelf Registration to which Holder shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or of the rules and
regulations thereunder; and in connection therewith, Holder agrees to respond
with any such objection as promptly as practical;
(3) promptly prior to the filing of any document that is to
be incorporated by reference into the registration statement or the
prospectus (after initial filing of the registration statement), with respect
to a Demand Registration, provide copies of such documents to counsel for
Holder;
(4) immediately notify Holder and confirm such notice in
writing (a) when or if the prospectus or any prospectus supplement or
post-effective amendment has been filed, and with respect to the registration
statement or any post-effective amendment, when the same has become
effective, (b) of any request by the Commission for amendments or supplements
to the registration statement or the prospectus or for additional
information, (c) of the issuance by the Commission of any stop order
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suspending the effectiveness of the registration statement or the initiation
of any proceedings for that purpose, (d) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
Registrable Shares for sale in any jurisdiction or the initiation or threat
of any proceeding for such purpose, (e) of the existence of any fact that
makes any statement made in the registration statement, the prospectus or any
document incorporated therein by reference untrue or that requires the making
of any changes in the registration statement, the prospectus or any document
incorporated therein by reference to make the statements therein not
misleading and (f) of the occurrence or existence of any pending material
corporate development that, in the reasonable discretion of the Company,
makes it appropriate to suspend the availability of the registration
statement; PROVIDED that, for not more than 75 days, the Company may delay
the disclosure of material nonpublic information concerning the Company (as
well as prospectus or registration statement updating) the disclosure of
which at the time is not, in the good faith opinion of the Company, in the
best interests of the Company (an "Allowed Delay"); PROVIDED FURTHER that the
Company shall promptly (i) notify Holder in writing of the existence of (but
in no event shall the Company disclose to Holder any of the facts or
circumstances regarding) material nonpublic information giving rise to an
Allowed Delay and (ii) advise Holder in writing to cease all sales under the
registration statement until the end of the Allowed Delay. Holder agrees it
shall cease all sales under the registration statement following receipt of
the notification set forth in (i) above until the end of the Allowed Delay.
Upon expiration of the Allowed Delay, the Company shall again be bound by the
provisions of Section 4.1(5) with respect to the information giving rise
thereto with such actions contemplated by Section 4.1(5) being taken in
connection therewith on or prior to the expiration of the Allowed Delay;
(5) if any fact contemplated by clause (4)(e) above shall
exist, promptly (a) prepare and file a supplement or post-effective amendment
to the registration statement or the related prospectus or any document
incorporated therein by reference or (b) file any required document so that,
as thereafter delivered to the purchasers of Registrable Shares, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading;
(6) if requested by the underwriter or underwriters or
Holder in connection with an underwritten offering of Registrable Shares,
immediately incorporate in a prospectus supplement or post-effective
amendment such information as the underwriters and Holder agree should be
included therein relating to the plan of distribution with respect to such
Registrable Shares, including, without limitation, information with respect
to the principal amount of Registrable Shares being sold to such
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of such underwritten offering of Registrable
Shares, and the Company shall make all required filings of the prospectus
supplement or post-effective amendment promptly upon being notified of the
matters to be incorporate in such prospectus supplement or post-effective
amendment;
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(7) use its reasonable commercial efforts to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement at the earliest possible moment;
(8) in connection with any underwritten offering,
participate in a reasonable manner in any "roadshow" marketing efforts
reasonably requested by the underwriters; and
(9) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available to its
securities holders, as soon as reasonably practicable, an earnings statement
that satisfies the provisions of Section 11(a) of the Securities Act and
covers the period beginning with the first month of the first fiscal quarter
after the effective date of the registration statement and ending between
twelve months and eighteen months thereafter.
In determining the 90 day period for purposes of clauses (1)(a) and (1)(b) of
Section 3.1, any day for which a stop order is in effect or has been
initiated as contemplated by clause (4)(c) above, any day on which any fact
contemplated by clause 4(d) or 4(e) above exists or any Allowed Delay
pursuant to clause 4(f) above shall not be counted, and the period shall
correspondingly be extended by the number of such uncounted days.
4.2 BLUE SKY QUALIFICATION. The Company shall use its reasonable
commercial efforts to cause the Registrable Shares that are the subject of a
Demand Registration, a Shelf Registration or a Piggy-back Registration to be
qualified for sale under the securities or blue sky laws of such
jurisdictions as Holder may reasonably request and shall cause such
registration or qualification to remain in effect in such jurisdictions until
such time as Holder shall have disposed of all of the Registrable Shares in
accordance with the intended methods of disposition or, in the case of a
Shelf Registration, as provided in Section 2. The Company shall do any and
all other acts and things that may be necessary or advisable to enable Holder
to consummate the disposition of Registrable Shares in such jurisdictions.
Notwithstanding the foregoing, the Company shall not be required to effect
any registration in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration unless the Company is already subject to service of process in
such jurisdiction.
4.3 COPIES PROVIDED. The Company shall furnish to Holder the
number of copies of the applicable registration statement and of each
amendment and supplement thereto (in each case, including all exhibits), the
number of copies of the prospectus contained in such registration statement
(including each preliminary prospectus) in conformity with the requirements
of the Securities Act, such documents, if any, incorporated by reference in
such registration statement or prospectus and any other documents that Holder
may reasonably request to facilitate the disposition of the Registrable
Shares.
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4.4 REQUESTED INFORMATION. The registration rights granted to
Holder by this Agreement are subject to the condition that Holder shall
provide the Company with information about the Registrable Shares to be sold
including the plans for the proposed disposition thereof, and other
information that is necessary, in the reasonable opinion of counsel for the
Company, to enable the Company to include in a registration statement all
material facts required to be disclosed with respect to the offering.
4.5 OTHER GENERAL OBLIGATIONS OF THE COMPANY. With respect to any
registration statement pursuant to Section 2, 3.1 or 3.2 herein, the Company
shall:
(1) make such representations and warranties to the
underwriters, if any, and agree to such indemnification and contribution
agreements, in form, substance and scope as are customarily made by issuers
to underwriters in comparable underwritten offerings;
(2) furnish Holder with (a) an opinion (and updates thereof)
of the Company's counsel (which shall be a law firm of national reputation)
to the effect that the registration statement complies as to form with the
Securities Act and any other securities or blue sky laws that Holder requests
pursuant to Section 4.2 hereof and that such counsel has no knowledge or
reason to know of any material misstatement or omission in the registration
statement and (b) a "comfort" letter (and updates thereof) signed by the
independent public accountants (which shall be an accounting firm of national
reputation) that have certified the Company's financial statements included
or incorporated by reference in such registration statement covering
substantially the same matters with respect to such registration statement
(and the prospectus included therein) and with respect to events subsequent
to the date of such financial statements, as are customarily covered in
accountants' letters delivered to underwriters in underwritten public
offerings of securities;
(3) if requested, provide the indemnification in accordance
with the provisions and procedures of Section 6 hereof to all parties to be
indemnified pursuant to such Section;
(4) deliver such documents and certificates as may be
reasonably requested by Holder and the underwriters, if any to evidence
compliance with Section 4.1(4) hereof and with any customary conditions
contained in any underwriting agreement or other agreement entered into by
the Company; and
(5) make available for inspection by Holder, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by Holder or underwriter,
all financial and other records and other information, pertinent corporate
documents and properties of the Company and its subsidiaries and affiliates,
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility.
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4.6 PARTICIPATION IN UNDERWRITTEN REGISTRATION. Subject to the
provisions of Section 3.2, Holder may not participate in any underwritten
registration under Section 3.2 of this Agreement unless Holder (i) agrees to
sell its Registrable Shares on the basis provided in any underwriting
arrangements entered into by the Company and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
4.7 LISTING. The Company shall cause all Registrable Shares
covered by any registration statement to be listed on each securities
exchange or inter-dealer quotation system on which similar securities issued
by the Company are listed.
4.8 HOLDBACK. In connection with any underwritten registered
offering pursuant to Section 3.1 or 3.2, the Company agrees to enter into an
agreement with the underwriters of such offering not to effect any public
sale or distribution of its equity securities during the period commencing
seven days prior to and continuing until 60 days after the registration
statement for such offering has become effective, except as part of such
underwritten registered offering, which agreement shall be subject to waiver
by the underwriters of such offering in their sole discretion; PROVIDED that
the foregoing shall not apply to registrations on Form X-0, Xxxx X-0 or any
successor or other appropriate forms.
4.9 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any capital reorganization or reclassification of the capital stock
of the Company, or any consolidation or merger of the Company with another
entity, or the sale of all or substantially all of the Company's assets to
another person or entity (collectively referred to as a "Transaction") shall
be effected in such a way that holders of Common Stock shall be entitled to
receive stock or other securities ("New Securities") with respect to or in
exchange for Common Stock, then reasonable, lawful and adequate provisions
shall be made whereby the Holder shall be provided with rights with respect
to such New Securities that are substantially similar to the rights to Demand
Registration, Shelf Registration and Piggyback Registration, upon the basis
and upon the terms and conditions specified in this Agreement, and in any
such case appropriate provision shall be made with respect to the rights and
interest of the Holder to the end that the provisions hereof shall thereafter
be applicable, as nearly as may be practicable, in relation to any New
Securities thereafter deliverable in such Transaction; PROVIDED, HOWEVER,
that to the extent that the granting of rights to Holder pursuant to this
Section 4.9 would be inconsistent with contractual obligations of the issuer
of the New Securities, Holder will be granted such rights to the extent
practicable and not inconsistent with such contractual obligations.
5. REGISTRATION EXPENSES.
The Company shall pay all expenses arising from or incident to the
performance of, or compliance with, the Shelf Registration and any Piggyback
Registration or Demand Registration, including without limitation: (i) all
registration, filing, listing and stock
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exchange fees; (ii) all fees and expenses incurred in complying with
securities or blue sky laws; (iii) all printing, messenger and delivery
expenses; (iv) all fees and disbursements of counsel and accountants for the
Company, including the expenses of any "comfort" letters; (v) all expenses
incurred in connection with making "roadshow" presentations and holding
meetings with potential investors to facilitate the distribution and sale of
Registrable Securities in an underwritten offering pursuant to Section 3
above; and (vi) all of the internal expenses incurred by the Company,
including, without limitation, salaries and expenses of officers and
employees performing legal and accounting duties, expenses of conducting the
annual audit of the Company's financial statements by its independent
accountants, costs in obtaining liability insurance on behalf of the Company,
its officers and directors, and the reasonable fees and expenses of any
special experts retained in connection with any registration statement
pursuant to the terms of this Agreement, regardless of whether such
registration statement is declared effective. . In all cases, Holder will be
responsible for underwriters discounts, selling commissions and fees and
disbursements of counsel for Holder with respect to the Registrable Shares
being sold by it.
6. INDEMNIFICATION AND CONTRIBUTION.
6.1 INDEMNIFICATION BY THE COMPANY. In connection with each Demand
Registration, Shelf Registration or Piggy-back Registration effected by the
Company hereby, the Company will indemnify and hold harmless Holder, its
officers and directors, each underwriter of the securities registered, and
each person who controls, within the meaning of Section 15 of the Securities
Act, Holder or any underwriter against any and all losses, claims, damages,
liabilities or expenses to which they or any of them may become subject under
the Securities Act or any other statute or common law, including any amount
paid in settlement of any commenced or threatened litigation after giving
notice of and opportunity to defend such commenced or threatened litigation
to the indemnifying party (collectively, the "Damages"), insofar as any such
Damages arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus (and anything incorporated therein by reference)(as amended or
supplemented) or any preliminary prospectus or 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 light of the
circumstances under which they were made. The Company shall not be bound by
the indemnification provision of the preceding sentence with respect to
Holder or any underwriter if such Damages arise solely out of or are based
upon any untrue statement or alleged untrue statement, or any omission or
alleged omission that was made in reliance upon and in conformity with
information furnished in writing to the Company by Holder or such
underwriter, as the case may be, for use in connection with the preparation
of the registration statement, any preliminary prospectus, any prospectus
contained in the registration statement, or any such amendment thereof or
supplement thereto. In addition, the indemnification provided in this
Section 6.1 shall not inure to the benefit of any underwriter from whom the
person asserting any such Damages purchased the securities that are the
subject hereof (or to the benefit of any person controlling such
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underwriter), if the underwriter failed to send or give a copy of the final
prospectus or any such amendment thereof or supplement thereto, whichever is
most recent, to such person at or prior to the written confirmation of the
sale of the securities to such person if there would have been no liability
if the final prospectus had been delivered.
6.2 INDEMNIFICATION BY HOLDER. In connection with each Demand
Registration, Shelf Registration or Piggy-back Registration effected by the
Company hereby, Holder agrees to indemnify and hold harmless the Company,
each person, if any, who controls, within the meaning of Section 15 of the
Securities Act, the Company, its directors and its officers against all
Damages based upon or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus (as amended or supplemented) or any preliminary prospectus or 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
light of the circumstances under which they were made, only if such statement
or omission was made in reliance upon and in conformity with information
furnished in writing to the Company by Holder for use in connection with the
registration statement or any post-effective amendment thereof or any
preliminary prospectus or prospectus contained in such registration statement
or any such amendment thereof or supplement thereto.
6.3 NOTICE OF CLAIM TRIGGERING AN INDEMNITY; WAIVER. Promptly
after the receipt of notice of the commencement of any action, proceeding,
claim or investigation or other similar event against any party entitled to
indemnity under Section 6.1 or 6.2 (an "Indemnified Party") in respect of
which indemnity may be sought from any other party (an "Indemnifying Party")
on account of an indemnity agreement contained in Section 6.1 or 6.2 (an
action triggering the liability under Section 6.1 or 6.2, an "Action"), the
Indemnified Party will notify the Indemnifying Party in writing of the
commencement thereof. The failure of any Indemnified Party to notify an
Indemnifying Party of any Action shall not relieve the Indemnifying Party
from any liability in respect of such Action, unless and to the extent the
failure to provide prompt notice prejudices the Indemnifying Party in its
ability to defend against or settle such Action. In addition, any failure to
give such notice shall not relieve the Indemnifying Party from any other
liability that it may have to the Indemnified Party. If any Action is
brought against any Indemnified Party and the Indemnified Party notifies an
Indemnifying Party of the commencement thereof, the Indemnifying Party will
be entitled to participate therein and to assume the defense of the Action
(the "Assumed Action") with counsel satisfactory to the Indemnified Party,
provided that the Indemnifying Party promptly notifies in writing the
Indemnified Party of its election to assume the defense of the Action and
acknowledges in writing that the claim in question is one for which the
Indemnifying Party is obligated to indemnify the Indemnified Party. Upon
receipt by the Indemnified Party of this written notice and acknowledgment,
the Indemnifying Party will not be liable to the Indemnified Party for any
legal or other expenses that the Indemnified Party subsequently incurs in
connection with the Assumed Action, other than reasonable costs of
investigation; however, if the Indemnified Party has a reasonable basis to
believe and does in fact believe that its interests in such Assumed Action
conflict with those of the
13
Indemnifying Party, then the Indemnified Party may so notify the Indemnifying
Party and the Indemnifying Party will remain liable to the Indemnified Party
for all legal or other expenses that the Indemnified Party incurs in
connection with the Assumed Action. The Indemnifying Party may not
compromise or settle any Assumed Action without the prior written consent
ofthe Indemnified Party, unless such settlement or compromise releases and
forever holds harmless the Indemnified Party from all Damages and any
culpability in connection with or arising out of the Assumed Action. The
Indemnified Party may not compromise or settle any Action without the prior
written consent of the Indemnifying Party, which may not unreasonably
withhold its consent.
6.4 CONTRIBUTION. To provide for contribution in circumstances in
which the indemnification provided for in Section 6.1 or 6.2 is for any
reason held to be unavailable from the Indemnifying Party, after deducting
any contribution received by either the Company or Holder, including from
persons who control, within the meaning of Section 15 of the Securities Act,
either the Company or Holder, officers of the Company who signed the
registration statement, and directors of either of them who may also be
liable for contribution, the Company and Holder shall each contribute to the
aggregate Damages of the nature contemplated by the indemnification
provisions set forth in Sections 6.1 and 6.2 herein (including any
investigation, legal, and other expenses incurred in connection with and any
amount paid in settlement of any action, suit, proceeding or asserted claims)
to which either the Company or Holder may be subject. The Company and Holder
each shall contribute an amount that shall reflect the relative fault of the
parties in connection with the statement or omission that resulted in such
Damages. The relative fault of a party shall be determined by reference to
whether any matter in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
party. The amount paid or payable by a party as a result of the Damages
referred to above shall be deemed to include, subject to the limitations set
forth in Section 6.3 hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6.4 were determined by pro rata
allocation or by any other method of allocation that does not take into
account the considerations referred to in the immediately preceding
paragraph. Notwithstanding the foregoing provisions of this Section 6.4, in
accordance with Section 11(f) of the Securities Act, no person guilty of
fraudulent misrepresentation shall be entitled to obtain contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6.4, each person, if any, who controls, within the
meaning of Section 15 of the Securities Act, the Company or Holder, each
officer of the Company who shall have signed the registration statement, and
each director of the Company or Holder shall have the same rights to
contribution as the Company or Holder, subject in each case to the provisions
of the preceding sentence.
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7. FILING REQUIREMENTS; COOPERATION.
The Company covenants that it will file any reports required to
be filed by it under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations adopted by the Commission
thereunder and that it shall take such further action as Holder may
reasonably request, to the extent required from time to time to enable Holder
to sell Registrable Shares without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (ii) Rule 144A
under the Securities Act, as such rule may be amended, from time to time or
(iii) any similar rule or regulation hereafter adopted by the Commission.
Upon Holder's request, the Company shall deliver to Holder a written
statement as to whether it has complied with such requirements.
8. MISCELLANEOUS.
8.1 SPECIFIC PERFORMANCE. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall be entitled to specific performance of
the terms hereof and immediate injunctive relief, without the necessity of
proving the inadequacy of money damages as a remedy, in addition to any other
remedy at law or equity.
8.2 AMENDMENTS AND WAIVERS. Any waiver of any right or default
hereunder will be effective only in the instance given and will not operate
as or imply a waiver of any other or similar right or default on any
subsequent occasion. No waiver, modification or amendment of this Agreement
or of any provision hereof will be effective unless in writing and signed by
the party against whom such waiver, modification or amendment is sought to be
enforced.
8.3 NOTICES. Any notice required or permitted by this Agreement
must be in writing and must be sent by facsimile, by nationally recognized
commercial overnight courier, or mailed by United States registered or
certified mail, addressed to the other party at the address below or to such
other address for notice (or facsimile number, in the case of a notice by
facsimile) as a party gives the other party written notice of in accordance
with this Section 8.3. Any such notice will be effective as of the date of
receipt:
Mailed notices should be addressed as follows:
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(i) If to Holder, to:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxx
Telecopier No: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxx
Telecopier No: (000) 000-0000
(ii) If to the Company, to:
Ticketmaster Online-CitySearch, Inc.
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
8.4 SUCCESSORS AND ASSIGNS. The registration rights granted to
Holder under this Agreement shall be non-transferable; provided that such
registration rights may be assigned to any person to whom at least 1,000,000
Registrable Securities (or the right to acquire 1,000,000 Registrable
Securities) shall have been transferred; PROVIDED, FURTHER, that this
Agreement may be assigned to the purchaser of all or substantially all of the
assets of Holder. The rights and obligations created by this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of
each of the parties and to transferees of Registrable Securities (or the
right to acquire Registrable Securities) as provided in the immediately
preceding sentence.
8.5 COUNTERPARTS. This Agreement may be signed in counterparts and
all signed copies of this Agreement will together constitute one original of
this Agreement.
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8.6 HEADINGS. The descriptive headings herein are inserted for
convenience of reference only and shall in no way be construed to define,
limit, describe, explain, modify, amplify, or add to the interpretation,
construction or meaning of any provision of, or scope or intent of, this
Agreement nor in any way affect this Agreement.
8.7 GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by, enforced under and construed in accordance with the laws of the State of
Delaware without giving effect to any choice or conflict of law provision or
rule thereof. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the non-exclusive jurisdiction of the
courts of the State of Oregon and of the United States of America in each
case located in the County of Multnomah for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such
courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in
Section 8.3 (or to such other address for notice that such party has given
the other party written notice of in accordance with Section 8.3) shall be
effective service of process for any litigation brought against it in any
such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any litigation
arising out of this Agreement or the transactions contemplated hereby in the
courts of the State of Oregon or of the United States of America in each case
located in the County of Multnomah and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such litigation brought in any such court has been brought in an
inconvenient forum.
8.8 SEVERABILITY. Any provision of this Agreement that is held by
a court of competent jurisdiction to violate applicable law shall be limited
or nullified only to the extent necessary to bring the Agreement within the
requirements of such law.
8.9 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties relating to the subject matter hereof and supersedes
other prior agreements and understandings between the parties both oral and
written regarding such subject matter.
8.10 INTERPRETATION. References herein to a specified number of
Registrable Shares are subject to equitable adjustment for shares of Common
Stock issued as a dividend or distribution on account of Registrable Shares
and for any combination or subdivision of outstanding Registrable Shares into
a less or greater number of securities (by reclassification, stock split or
otherwise). In the event that shares of Common Stock deemed to be Registrable
Shares are exchanged for any other securities issued by the Company, such
other securities shall constitute Registrable Shares and the provisions of
this Agreement shall be interpreted and construed in order to provide
registration rights with respect to such other securities constituting
Registrable Shares that are substantially identical to the registration
rights granted hereunder with respect to the exchanged shares of Common
Stock. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the
parties and no
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presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
MICROSOFT CORPORATION
By: ________________________
Name: ________________________
Title: ________________________
TICKETMASTER ONLINE-CITYSEARCH, INC.
By: ________________________
Name: ________________________
Title: ________________________
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